Appealing a Denied Claim

What and where does it state in the regs about an employee's right to appeal the employer's denial of time off under the FMLA?
Is there a specific process or does the employer just have to provide a new Certification for the employee to complete?

Comments

  • 11 Comments sorted by Votes Date Added
  • I copied and pasted this from the dol website, which seems to be the answer. As you can see, denying a claim has serious repercussions. Can you share with us your situation?


    29 CFR 825.400 - What can employees do who believe that their rights under FMLA have been violated?


    Section Number: 825.400
    Section Name: What can employees do who believe that their rights under FMLA have been violated?

    --------------------------------------------------------------------------------

    (a) The employee has the choice of:
    (1) Filing, or having another person file on his or her behalf, a
    complaint with the Secretary of Labor, or
    (2) Filing a private lawsuit pursuant to section 107 of FMLA.
    (b) If the employee files a private lawsuit, it must be filed within
    two years after the last action which the employee contends was in
    violation of the Act, or three years if the violation was willful.
    (c) If an employer has violated one or more provisions of FMLA, and
    if justified by the facts of a particular case, an employee may receive
    one or more of the following: wages, employment benefits, or other
    compensation denied or lost to such employee by reason of the violation;
    or, where no such tangible loss has occurred, such as when FMLA leave
    was unlawfully denied, any actual monetary loss sustained by the
    employee as a direct result of the violation, such as the cost of
    providing care, up to a sum equal to 12 weeks of wages for the employee.
    In addition, the employee may be entitled to interest on such sum,
    calculated at the prevailing rate. An amount equalling the preceding
    sums may also be awarded as liquidated damages unless such amount is
    reduced by the court because the violation was in good faith and the
    employer had reasonable grounds for believing the employer had not
    violated the Act. When appropriate, the employee may also obtain
    appropriate equitable relief, such as employment, reinstatement and
    promotion. When the employer is found in violation, the employee may
    recover a reasonable attorney's fee, reasonable expert witness fees, and
    other costs of the action from the employer in addition to any judgment
    awarded by the court.



  • The situation is that the employee had a sprained ankle, and the CHP signed by the doctor stated that she could perform her job duties, and that the only day she was out was the day that she was seen in the emergency room......she continued to be out five work days after that. If she can get me additional information, I will consider it, but based on what I have here at this time, it only addresses the one day, which is why I denied it.
  • I assume she also met the 12 month employment rule. Sounds like you're on solid ground with the medical info you have so far. She doesn't meet the serious health condition lasting more than three days, per the doctor's note. Are you charging her with an unexcused absence for the other days, and this is why she is not happy? Perhaps you can show her the written guidelines.
  • That's exactly the situation.....I believe there are possible attendance issues that had previously existed, and although she has met the requirements for FMLA, it does not state she could not work that week following the visit to the ER. I did email her the guidelines as to what qualifies, but she is now telling me that she has the right to appeal this. That's what sparked my initial email - I was not aware of any specific appeal instructions.

    So my next question is, should I provide her with a new Certification to complete or just leave it as denied and be done with it? What if she sends me a note from the doctor simply saying she needed that following week off? Do I have to accept that and approve it then?
  • She does not have the right to appeal. She has the right to give you more information to show her medical condition is covered under FMLA. I would give her a specific and reasonable time limit to do so.
  • And this information that she can submit can be as simple as a hand written note from her doctor stating that she could not work all week, correct? I ask because I know that's all I'll get.
  • If she brought me a note, I would give her a new certification and tell her to get it filled out.

    If you have allowed notes to supplement certification in the past your on thin ice.
  • Maybe "appeal" is not the right word, but in my original post I believe she has the right to file a complaint with the Secretary of Labor. Hopefully that will not be necessary.

    Has she seen two doctors, the ER doctor and then a second doctor? If only one doctor has seen her, I would be surprised if he/she would change their initial note, unless the employee went back a second time, still complaining of pain perhaps. If she saw a second doctor, it is possible he/she could have suggested she take more time off. Has she ever explained why she needed more time off when the original note only said one day?

    I probably would take whatever form the note comes in, if she can provide one. Unless there's more to this story than we know, and the note is clear, then give her the excused absence and log it in as FMLA time for the future 12 months.
  • I did tell her that if she can provide additional information to me by the end of this week, I would review it for consideration. Will keep you posted....thanks for your input.


  • I don't think it is unusual for a Dr. to amend an estimation of the amount of time off needed after a surgical procedure. They estimate these things up front, but each individual may respond differently to even a routine procedure. If the extra time off is warranted, then let the Dr. tell you it is and in that case, allow the additional FML. If it is not warranted, then stick to your guns. Either way, let it be a medical call so you do not place yourself in a position of diagnosing what is and is not a serious medical situation.

    As Don D might point out, just imagine yourself on the witness stand trying to defend your actions with the plaintiffs attorney asking you to outline your professional medical experience and why you felt qualified to do what you did.

    Bottom line, let the medical profession tell you if additional time is warranted. If you don't believe the first doctor, pay for a second opinion and a third to break the tie if that is necessary. Seems like a large hassle for a couple of days.

    If it is an attendance issue outside of the medical situation, it will surely resurface soon enough - then apply attendance policies.
  • Good point, marc - your statement about imagining myself on the witness stand is actually part of the reason I was confident in denying it. I will simply give her doctor the opportunity to provide enough info for me to extend it, and if that occurs, I'll be glad to do it.
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