Continued Treatment

safety

I have an ee who had major dental surgery that required him to be gone from work for two days. I gave him FML forms that were returned with box 2 checked accompanied by a letter from the provider stating the patient was given prescription medication that was never filled. Would you certify this as continued treatment under box 2, absence plus treatment?

lorrie

Does this even count as FML? I thought to be a 'serious health condition' it had to require an absence of more than 3 calendar days.

SMace

It doesn't meet the absence plus treatment definition because the absence must be more than three days. It may meet some other definition, but not that one. I would advise that the FMLA is denied because it does not meet the requirements of absence plus treatment. I give them a chance to go back to their doc to see if it falls under some other aspect of FMLA. Don't knwo if that is a requirement, it's just something I do.

safety

OK, but on the FML fact sheet under 2(a)(2) it states, "Absence Plus Treatment, Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.” A footnote is provided that references the following, “A regimen of continuing treatment includes for example, a course of prescription medication….”

SMace

I think since it doesn't meet the day requirement, the prescription part is moot.

It is an interesting question, though. Do they have to actually take the medication? I would think as long as they are precribed the medication, it doesn't matter. We'll see what the others say.

HRLASS

I vote for the three day requirement. Lots of folks have dental surgery and don't feel like filling the prescription for painkillers for the few days following the surgery. I would say "no" to the FMLA coverage.

lorrie

On the US Dept of Labor certification form, it specifies in 2(a) that the period of incapacity must be more than 3 consecutive calendar days... that also involves: (1) treatment 2 or more times... or (2) treatment ..on at least one occastion which results in a regimen of continuing treatment...

So while 2(a)(2) defines the treatment, it must still meet the definition of absence, which must exceed 3 days.

LivindonSouth

That is incorrect. The absence does not have to be three days if the other factors kick in, such as one night in the hospital or a regimen of treatment following a visit and followup. What's this about the prescription not being filled? Who would know that?

lorrie

This forum is so helpful to me; I find it easier to learn the regulations when applied to real life situations.

So, what is the next step here? Is FMLA denied because it does not meet the 3-day requirement of #2, and leave it up to the employee to return it to the doctor and choose the appropriate category?
Or does HR declare it as FMLA leave because it meets one of the other categories, even if the doctor did not check one of those? (And does this situation actually meet one of the others? If so, which one? I can't quite place it.)

pork1

Lorrie: Chalk it up as two (2) authorized days of sickness and move on. The 2 days will most likely not impact severally on the next FMLA situation. When that event happens, you will be able to refer back to these 2 days as possibly a factor in the total 74 days authorized by FMLA. Good question, but probably not an issue. What difference will it make in the larger scope of all the things that HR is called upon to exercise every minute of every day.

Pork

SMace

Lorrie, you perfectly summed up this discussion. In the situation you describe, I would tell the ee that the certification would not qualify under absence plus treatment as the doctor has indicated. It may qualify under a different serious health condition. I would then tell them that if you want your absence to qualify under FMLA you should talk with your doctor to see if in fact your situation falls under another definition of serious health condition.

You could also read the form and make the determination yourself. Maybe they should have checked box #6 instead of box #2 and you decide to go ahead and make the correction yourself. In my opinion that is too close to playing doctor. My job is to fill out the employer section of the form. I do not mess with the physician part of the form.

POPEYE

I agree with the gentleman from MS. There is not a "mandatory" 3 days absent, it depends on other criteria. Who divulged the information about the unfilled prescription? IMHO that might be bordering on a HIPAA violation.

safety

In a conversation with a DOL employee last year I was told that if one of our ee’s goes to a health care provider and is issued a prescription that is considered continued care and no matter how much time is missed it would qualify under FML. The issue last year was sinusitis, ee missed one day and the healthcare provider issued prescriptions. This was not a three-day absence last year and the current ee issue is not a three-day absence.

The health care provider told me the patient did not fill the prescription, possibly a HIPAA violation but the ee knew about this, he handed the letter to me.

LivindonSouth

Lorrie: Here are a couple of scenarios which might equal FML even in the event of it NOT involving more than three days:

Example 1) The dental patient has been treated for several years for gum disease and now has had surgery to remove two teeth and also had a gingivectomy procedure. This could well meet the criteria found at 825.114 (a)(2)(iii), ANY period of incapacity or treatment for such incapacity due to a chronic serious health condition. You just don't know without further analysis.

Example 2) Unbeknownst to you, your employee was in a minor fender bender the prior night and spent part of the next day in the oral surgeon's chair, maybe even returned the day after for followup and got a prescription (but never had it filled, which is not relevant). This could well meet the criteria found at 825.114 (a)(2)(v),....ANY period of absence to receive multiple treatments....or for restorative surgery after an accident or other injury...or for a condition what would likely result in a period of incapacity of more than three consecutive days in the absence of medical intervention.

I'm not suggesting that you have a duty to dig deeper than the information presented to you on the paperwork. The point here is to show that we cannot always simply stop the analysis at the 'three day test'. You can do as was suggested and simply "chalk it up", or you can do a more in depth analysis in order to reach the appropriate decision on certification or refusal to certify.

SMace

Either one of your examples are not the "absence plus treatment" part of FMLA.

For example one they should have checked box #4.

For example #2 they should have checked box #6.

In Safety's situation, they checked box 2 (a), which is absence plus treatment that, according to page 4 of the Form wh-380, requires a "period of incapacity of more than three consecutive days."

LivindonSouth

The lady asked for a reference section in the act wherein the three day test would not apply, or so I understood her. I'm not parsing boxes and which thought the doctor may have had or not. I merely laid out circumstances that dispel the popular notion that the magic denominator is always 3. It is not. The job I see myself having, in such circumstances, is to fairly evaluate all the information at hand and if that requires conversation with the employee to consider all possible qualifying circumstances or allowing for physician's to check wrong boxes, that goes with the territory. Your job seems to be to fill out a section of the form. We both move on with that in mind.

SMace

If you see my response in post #14, you'll see we agree more than you think. It is possible.