FMLA - an excuse for abuse

HeRman39

We have an EE who has completed the necessary certification for FMLA requirements. His doctor has as a diagnosis hypertension, anxiety, depression, COPD, and CAD. He states that the EE will have this condition(s) for the rest of his life. Whenever this EE is absent from work he brings in a variety of doctor excuses such as "unable to work due to heart and stress," "unable to work due to stress, high blood pressure," and simply "chest pain." This employee has been a chronic problem for absenteeism (even before this "condition") and has regularly stretched the attendance policy to the limit.

How much proof can we demand from his doctor as to whether he actually treated this EE for an illness on the day(s) in question, as to medical evidence that this condition makes the EE unable to perform his job, and as to how his current treatment is related to the initial certification? The diagnosois seems to be so broad and the excuses so vague that the EE has been basically given carte blanch to effectively sidestep our entire attendance policy whenever he does not feel like coming to work.

BTW, this same EE has also obtained certification stating that his wife is developing demensia and needs supervision and needs to be taken to appointments and rehabilitation.

awilliams

This may be a good case for you to exercise your right to send him to a doctor of your choice for a second opinion. You will pick up the bill, but it might help you get some parameters for his approved illness-related absences. Make sure that you inform the doctor of the requirements of FMLA and see if the employee's hypertension, stress, and chest pain rise to the level of a serious health condition.

Hopefully some other Forumites can share some of their techniques for dealing with this type of situation.

Anne Williams
Attorney Editor
M. Lee Smith Publishers, LLC

Don D

Nothing in the Family & Medical Leave Act gives an employer a right to have a diagnosis. Period. You have no right to the information you listed in your post as having received from the physician. A health care provider's certification does not include specific medical diagnosis. Although I may be misjudging your intent, I think you may be about to cross the line with the amount of information you feel you are entitled to.

POPEYE

I whole-heartedly agree with Don. Since visiting with several attorneys and a Judge of the 6th Circuit Court, I have done a 360 degree turnaround concerning verification each time an EE utilizes intermittent FMLA. If their initial certification says they will have this condition for their lifetime, then they are certified for life and you may not ask for verification in any way, shape, form or fashion other than as Anne suggested. My turnaround was almost instantaneous when the Judge informed me of some of the settlements that he has witnessed a jury hand out over that very thing.

As Don eluded to, you have "way too much" info already and the physician that supplied it needs to review his Hipaa manual.

The only way to eliminate supposed abuse of intermittent leave is for the EE to exhaust all of their entitlement hours.

Don D

Just curious: Was this visit you had with the federal judge over the backyard fence while grilling out or were you standing at attention saying 'Yes Suh!'? x:-)

POPEYE

Fortunately it was at the State HR Conference in Memphis a couple of weeks ago and we were having a cold adult beverage at Issac Hayes' night club.
The Judge was one of the speakers for the convention and the attorneys present were "sucking" up to the Judge. Guess ya never know when you might appear in front of him.

Don D

Never trust a lawyer who goes to Isaac Hayes' nightclub when he could be at B.B.King's in the same city! Isn't there some correlation between a lawyer and Hayes' "Shaft"?

Dutch2

Popeye, how many "adult cold beverages" did you have? Isn't 360 degrees right back where you started from? However there is a bit of wisdom in staying on the good side of any judge that you happen to meet. Unless the judge is orange and sports a pontiac emblem, then chances are you will be behind this judge.
Have a good one, in fact...have two if you feel up to 'em,
Dutch2

POPEYE

180 - 360 - Let's just say I changed my thought process. No it was not the adult beverage that did it but the words of the Judge!!!!!

stilldazed

I'm in full agreement with Don D. Nothing in FMLA says you get to know a diagnosis, and HIPAA further prevents you from sharing the information in writing, electronic communications, or verbally without the employee's authorization.

It sounds like you may be trying to practice medicine by questioning the medical opinions--out of your scope unless you are licensed and employed to practice medicine. Your organization's right is that described by your first response--send the employee for a second opinion if you have doubts (neutral professional outside of your organization). You have to decide whether you want to use that option. If you don't, your employee's medical certifications should be accepted for what they are--medical certifications documenting the employee's need to be absent from work, and you and your staff should refrain from any unnecessary discussion about this person's medical issues.

It also sounds like you or someone else may be encroaching on retaliation. Your company is letting your past knowledge of this person's attendance problems cloud your thinking. That is dangerous. Back off, clear your head, forget about the person, and focus on the circumstances. If the employee is savvy, you may be being set up for legal challenge.

And no one ever said that FMLA doesn't get abused. The intent of FMLA is good, it's a huge pain to administer, truly is beneficial to some folks, and occasionally does give an employee more opportunity for abuse. The best you can hope for is that the employee exhausts 12 weeks in less than a year. Let that happen, and then discipline. Another angle might be to realize that if this employee is truly abusing the system, he/she is likely marginal in many areas of work performance. Get honest and consistent (accross the board with all employees) with work performance evaluation. You may be surprised what turns up.