FMLA in lieu of accrued time
KP68
164 Posts
We have recently changed a policy in one of our offices where employees cannot take time off that they have not earned or accrued yet. So I have recently become aware of what employees are doing to 'get around' this change so they can get time off work.
They are taking the FMLA Certification form to their doctors and having them state a condition they have (whether or not it is real, I'll probably never know), stating they need intermittent leave due to a chronic condition - chronic headaches, hypertension, etc.
Rumor is that these employees are afraid they won't feel well one day and won't have any earned time to call in sick and are taking the FMLA route to be proactive, thinking they can use it for any reason.
This is coming from a location where the time off has constantly been abused, and I'm very worried that they just may have found the ultimate loophole!
Am I missing something??
They are taking the FMLA Certification form to their doctors and having them state a condition they have (whether or not it is real, I'll probably never know), stating they need intermittent leave due to a chronic condition - chronic headaches, hypertension, etc.
Rumor is that these employees are afraid they won't feel well one day and won't have any earned time to call in sick and are taking the FMLA route to be proactive, thinking they can use it for any reason.
This is coming from a location where the time off has constantly been abused, and I'm very worried that they just may have found the ultimate loophole!
Am I missing something??
Comments
Taking only that leave to which you are entitled...What a concept!
And, by the way, welcome to the world of FMLA abuse. There is nothing short of wrecking your health that you can do when people know how to work the system and their doctors are in consort with them. My advice is to always start the clock as soon as possible and monitor the absences with a microscope. Some of them will survive but some of them might self-destruct.
The "loophole" is sizeable, but can also be limited by the org's tolerance for making certain the medical condition(s) are genuine and worthy of FMLA protection. Headaches, flu, upset stomach, etc.. are not normally covered illnesses (assuming complications are not present), so the avenue for time off w/o pay is not as wide open as you implied. Ensure that the "incapacitation" issue is present with whatever illness exists to avoid the loophole becoming cavernous. The rumors may not be as accurate as feared.
>Headaches, flu, upset stomach, etc.. are not >normally covered illnesses (assuming >complications are not present).
In light of your statement above, the cert I received for the employee 'proactively' requesting time off indicated the reason is Hypertension/Chronic headaches.
Is this worthy of an approval based on this diagnosis?
It might be. Is the request for continued or intermittent leave? Numerous courts have said that conditions such as hypertension, headaches, muscle aches, fatigue, etc..... by themselves will not constitute a serious health condition. These examples must have multiple other symptoms, which in combination may qualify for FMLA. You'll have to determine from the med cert form whether incapacity exists and whether the employee can perform all of the essential functions of the job. Maybe reduced leave is an option for this type of employee?????
There is an initial expense to this, but cutting down on controllable absenteeism may well be worth it.
>Headaches, flu, upset stomach, etc.. are not >normally covered illnesses (assuming >complications are not present).
In light of your statement above, the cert I received for the employee 'proactively' requesting time off indicated the reason is Hypertension/Chronic headaches.
Is this worthy of an approval based on this diagnosis?
Don Sez: Backing up for a moment: It is not up to Human Resources persons to evaluate diagnoses or medical statements in order to approve or deny FMLA. In fact, we have absolutely no right to ask for or to evaluate medical information such as hypertension or chronic headaches. That is simply not allowed under the FML Act. The practitioner fills out the form and indicates whether the patient can perform her duties or needs to be away from work full time or intermittently due to the condition. HR has no business deciding what conditions might be eligible and no business asking for or evaluating specific medical diagnoses.
The Act specifically states "the written medical certification shall include" and proceeds to explain the required infor that must be provided to the employer. In the absence of any bona-fide information, the Act does NOT require employers to shrug their shoulders and approve the absence based on intent or any assumption of facts. As the president of our medical staff said the other night: "This FMLA is driving us crazy. We complete the form as a convenience to our patient and we're trying to assist the patient while fumbling through that certification form. The decision maker of the LOA rests with the employer and we walk a narrow line." The point being-----employers determine whether the med cert info satisfies the Act's requirements based on the health providers information. It either does, doesn't or needs clarification. The employer has every right to obtain the necessary information before rendering a decision on FMLA. While there's a demarkation between obtaining necessary info and practicing medicine, the employer has to know the boundaries and operate in good faith. As a couple of DOL investigators and a 5th circuit judge have said to me-------YOU (Mr. Employer) are responsible for the administration of this Act. Adminster it consistently and in good faith. If the employee disagrees, there are sufficient remedies to address the problem. There's no question that employers cannot behave unilaterally or recklessly, but there's also no question, in my opinion, about the employer's right to get sufficient information to administer the Act.