2 FMLA Questions...

LindaS

I have two FMLA situations that I would like your advice on how to handle...

Situation #1 - I have an employee who has been approved for intermittent leave due to a back condition. I have received reports from other EEs in his department that he is using FMLA leave to allow him to get to a class he is taking (not work related)at the local technical college. In reviewing his FMLA leave, he has taken 4 out of the last 5 Wed. PM as FMLA (the same day of his class). Do any of you see a problem with contacting the school to verify that he is taking a class and what time that class starts? If I receive the verification, would you then recommend meeting with the employee to discuss?

Situation #2 - I have an employee (another back problem) who is approved for intermittent leave. On his form the physician reported on #5C that the episodes of incapacity should be 1-2 per year, max. 7-10 days. He has taken 4 weeks off of FMLA and has called in the last 4 Mondays. This is another EE whose workforce members report that he takes long weekends on his Harley. What are your recommendations on addressing this one?

deniseE

The problem is that you're receiving information about ee from other ee's....it's kind of like calling in sick and being seen at the mall...it calls the whole thing into question, but there's not much that can be done about it.

However, FMLA does permit you to ask for additional certification or a follow up...

I wouldn't call the school...but perhaps request verification from his Dr. about the back injury and how it relates to the time off...

With the other guy, since he's taking so much more time than the dr. initially indicated, a follow-up seems to be in order!

Even with intermitent leave, we do require dr. cert for time off....

SMace

Here is another option:

1. You could call him into your office and tell him you are going to get a second opinion on his FMLA cert. Then tell him why. Give him an opportunity to fess up. If not, send him to another doc (not company doc) and see how it goes. Even if it checks out, word will get out that you don't roll over and take it.

2. You could call him in the office and explain that his absences don't fit the certification on his form. Obviously his condition has changed since the forms were filled out. As of today any absences related to this current certification will not be covered by FMLA unless your physician updates the form. You have 15 days.

I think Denise made a comment that she gets additional doctor's certification for any intermittent absences. You cannot do that. If the FMLA certification covers the absence you cannot require additional information. If I miread your post, Denise, I apologize.

deniseE

We do have employees provide verification that they were out for FMLA leave to make sure that we are correctly separating the leave and not charging more FMLA time than necessary.

So far, we've not had a problem...if there's something in the regs preventing this...we need to re-evaluate our request!!!!

SMace

What if someone has a migraine and the go home to a dark room and take some meds? They don't have to go to the doctor. How can a doctor certify that they did that?

I could point to the specific regs or interpretation of the regs but I don't have the time to research it. I just know it to be true. Maybe one of our research guru's can help.

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 09-28-04 AT 12:56PM (CST)[/font][br][br][font size="1" color="#FF0000"]LAST EDITED ON 09-28-04 AT 12:53 PM (CST)[/font]

29 CFR 825.308: "For FMLA taken intermittently or on a reduced leave schedule basis, the employer may not request recertification in less than the minimum period specified on the certification as necessary for such leave, including treatment, unless one of the conditions set forth in paragraph (c)(1), (2) or (3) of this section are met." Those sections deal with an employee who requests extension of leave, circumstances changing significantly and receiving information that casts doubt upon the validity of the certification. Receiving information through the rumor mill is still receiving information. The Act does not preclude or include that specifically.

(Don's opinion):In this case, the latter will suffice to require a recertification.

Also, 825.310 (g), "an employer is not entitled to certification of fitness to return to duty when the ee takes intermittent leave." (A doctor's statement always includes a release to return to work on (date) statement. That is a fitness for duty statement).

Both of these sections have been used to specifically address the issue of requiring him/her to produce a doctor's statement to substantiate the absence as illness related while approved for intermittent leave. And, I can assure you that you would lose a contest on this one with the DOL as referee. The doctor has already certified that certain periods of absence will be necessitated by the medical condition. It need not follow that, if absent, the ee is expected to go and see the doctor.

mushroomHR

OK, so what if I have an employee on intermittent leave and this intermittent leave requires the employee to unexpectedly be checked into the hospital for a couple of days. Do I have the right to ask that employee to bring me a fitness for duty certification so that I know she is fit to return to work? I'm not questioning her absence, just the fact that she has been in the hospital I want to make sure she can work with no problems.

Don D

I would. I would hang my hat on the 'conditions of the leave changing significantly'. That is allowed under the regs. Unless the conditions of the intermittent leave included periodic two day stays in the hospital after which she is cleared to return to work, which I doubt.