Excessive use of FMLA

LindaS

I have an employee who we feel is abusing his FMLA leave. He has a certification from his physician for a chronic back condition and, in the area that asks for frequency of incapacity, the physician states that 1-2 times per year is what is expected. In 2003 he used 400+ of his 480 allowable hours. Do I have a right to require him to be seen again by his physician for a re-evaluation in this type of situation?

I have another employee whose physician refuses to certify her FMLA leave on an "as needed" basis because he doesn't want to give her "carte blanche" absences from work. This employee took a copy of her 2003 absence report with her to the physician to prove she wasn't abusing the certification.

Any thoughts on what I can do with the first employee?

POPEYE

LindaS - Check out 825.308 of the Regs. You may request re-certification in most cases. We have in our written Rights/Responsibilities letter that for chronic/on-going intermittent leave, we will require re-certification every 6 months. I know I don't have to tell you but if you choose to request it, be consistent with all.

SMace

Agree with other poster. Just wanted to make the comment about the second ee. You are quite lucky you have a physician in your area with a sense of ethics in regards to FMLA. I bet that physician had some problems of their own with someone abusing FMLA.

marc

Not only can you pay for a second opinion, you can require a recertification every 30 days from the original doctor. You can also require a recertification if the situation has dramatically changed from original, such as the illness to a significant turn for the worse or for the better. If the original certification said 1 or 2 times per year, and the EE is utilizing 10 times per year, maybe that is dramatic enough for the original Doctor to take a second look.

Why not get the second opinion from the doctor who refuses to certify 'as needed' leave so the EE cannot abuse the FML?

SMace

Excellent idea Marc. Linda you have found your new second opinion doctor. I might even consider flying some of my ee's to Wisconsin just to see him. x:D

mwild31

Okay LindaS - take this advice or leave it - you're much better at FMLA than I am, but I'll throw in my two-cents anyway x:-).

As clever as marc's advice is (I got a good chuckle x;-)), don't follow it:

"If the employer has some reason to question the medical certification, the employer may require and the employee must provide a second medical opinion from a doctor selected and paid for by the employer. The employer may not use a company doctor, or a doctor with whom the employer has an ongoing relationship. For example, if an employer has a contract with a local private doctor to conduct employment physicals for prospective employees, the employer may not use that doctor to obtain a second opinion except in very limited circumstances."

In the first case you described, I would deny the paperwork from the physician & ask the ee to go back to their doctor for a more definitive answer to the question of incapacity. If you want, you can print off this page from the DOL for the ee to carry along to the doctor.

[url]http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.306.htm[/url]

I'd highlight this section:

"(B) If the patient's incapacity will be intermittent, or will
require a reduced leave schedule, an estimate of the probable number and
interval between such treatments, actual or estimated dates of treatment
if known, and period required for recovery if any."

and ask the doctor for more info than simply "the physician states that 1-2 times per year is what is expected."

Just my thoughts!