wife has "severe anxiety"

cowboyup2

We have an employee that has a wife with severe anxiety. He has missed work off and on for a month and a half. Her doctor would not release any info on her as to the problem initially. The employee then just went home to care for her. At my attorneys advice, I sent a letter to him, 10 days later, telling him that in order to look at FMLA for him I would need a Doctors statement indicating the seriousness of the problem to see if his situation would qualify for FMLA. I received a form back that states that the employees wife has severe anxiety and needs care. Duration is unknown and frequency is unknown. I sent the response to my attorney. My question is, is severe anxiety a covered item? With no parameters for duration and frequency how does a company respond/handle this? I can't put the employee on a schedule or know how long he can be here any given day? Advice?

marc

I think you put him on FMLA and wait for the 12 weeks to pass. There are specific circumstances that will allow you to get re-certification, but you don't have enough information to determine if you can recertify every 30 days (as is the case in chronic or long term situations) or if you have to wait until the end of the original certification - which is not specified in the information you have been given.

You may request a second opinion and even a third to break a tie.

I would count all the days missed toward the 12 weeks and toward the end of that period, I would send a certified letter explaining that leave will be over on a date certain. If you allow leave extensions, I would include that in the letter. In any case, if he does not respond or come to work at the end of the leave, you will be able to terminate and move on.

The guy is probably overwhelmed with the situation, I know I would be if my wife were having these sorts of issues. All I would think about is getting her better.

System

Any condition that requires continuing treatment by a health care provider and that also causes incapacity (such as inability to work) due to certain circumstances defined under the FMLA (one of which is "a chronic serious health condition which continues over an extended period of time, requires periodic visits to a health care provider, and may involve occasional episodes of incapacity") is considered a serious health condition that entitles an employee to FMLA leave to care for an immediately family member with that condition. Anxiety disorders definitely can fall into this category, so this employee would be entitled to leave, assuming all the medical documentation confirms the wife's condition (and it sounds like it does). Keep in mind that the employee can take his leave intermittently if it is "medically necessary" for him to care for his wife, so you may not just be able to put him on a continuous 12-week leave if he requests intermittent leave.

The DOL interprets "medically necessary" as meaning that there must be "a medical need for leave and it must be that such medical need can be best accommodated through an intermittent or reduced leave schedule" (of course there doesn't seem to be any official guidance on what constitutes a "medical need," but I suppose that would be part of the doctor's analysis included on the FMLA certification forms s/he completes). Employees have an obligation to try to schedule their intermittent leave in a way that is not disruptive to the employer's operations where possible (ha). Employers can, however, temporarily assign an employee on intermittent leave to an alternative position with equivalent pay and benefits that better accommodates the employee's intermittent leave schedule. Don't know if that's an option for you, but it might be something to consider.

cowboyup2

I am unsure how much his wife needs to see a DOctor or if she is even on any medication. Secondly, he can't work any schedule, even reduced. He does not know when he will be back or if he will be. He does not even have enough money to pay for his portion of the company sponsored health benefits. If I give him the 12 weeks he still loses his health benefits because he can't pay for them. Can I have my Medical Health plan provider speak with the doctor to find out more? Any other thought would be great!

System

The fact that she has a medical condidtion that needs care does not automatically qualify for FMLA. I might get severe tonsilitis andt need care, but that doesn't necessarily equate to a family member being required to help care for me. Why don't you communicate to your employee that the doctors coments are inconclusive and that you need further clarification regarding his potential eligiblitiy for FMLA. Put the burden back on the employee, and inform him that if you do not receive the requested clarification, including diagnosis, required level of assistance from family, and expected duration, you cannot consider his leave as FMLA - then either deal with him as you would anyone else who misses work, or offer him a unpaid personal leave of absence for a period of time (i.e 2-4 weeks) after which if he fails to return to a full schedule, he will be terminated. If, on the other hand, the doctor provides the necessary documentation that would indicate he qualifies for FMLA, grant it to him but require him to keep you apprised on a regular basis.

System

Well sure, he needs to show that he is "needed to care for" his wife, but, in my experience, this threshhold is fairly low, as it encompasses both physical and psychological care, situations where the family member is unable to transport him/herself to the doctor, or even where the employee's presence to provide psychological comfort would be beneficial to the family member or assist in his/her recovery. I'd be surprised if a severe anxiety disorder (and possibly even severe tonsilitis ;-) ) would not pass this threshhold, but of course you should get all the required documentation - I would just be careful that you're not asking this employee to jump through more hoops than you ask (or have asked) of other employees.

NaeNae55

"He does not know when he will be back or if he will be."

FMLA is granted on the basis that the employee needs leave and will return to work. If the employee can't state that they are planning on coming back, no leave (just termination). When you are getting clarification on the certification you should probably get clarification on the returning to work part too.

Good luck!

Nae

System

Whoa there. Be very careful - unless the employee has stated with certainty that he has no intention of returning to work, the employer must grant the FMLA leave (assuming all other conditions are met). Even where an employee expresses that he may not ever be able to return to work, you must grant FMLA leave as long as he expresses the desire/intent to return to work if possible.

NaeNae55

You are correct Missk, you must grant leave if the employee is planning on returning to work. I based my post on Cowboyup2's statement in post #3: "He does not know when he will be back or if he will be."

I felt, and still do, that the statement should be clarified with the employee. If he is not returning to work, then no leave (and no need for stressing over what to do). Clarify it first.

Nae

System

Right, but even based on the statement you quoted: "He does not know when he will be back or if he will be," the employer must provide FMLA leave. The DOL's regulations on this are very clear, specifically (especially note the last sentence):

Section 825.309(b):

"If an employee gives unequivocal notice of intent not to return to work, the employer's obligations under FMLA to maintain health benefits (subject to COBRA requirements) and to restore the employee cease. However, these obligations continue if an employee indicates he or she may be unable to return to work but expresses a continuing desire to do so."


So as you can see, it is only where the employee gives *unequivocal* notice that he won't be returning that the employer doesn't have to grant the leave (i.e., there is no question that the employee has no desire whatsoever to return to his job, no matter what.). And even where the employee says he may be unable to return to work (i.e., "He does not know when he will be back or if he will be"), the employer must grant the leave. In Cowboyup2's case, there doesn't seem to be any indication that the employee definitely will not return no matter what. Any attempt to clarify with the employee will likely get the same response, that he wants to keep his job, but doesn't yet know if he'll be able to. Even if that's the most clarification Cowboyup gets from the employee, the employee must get his FMLA leave.

marc

Agree.

HRQ

And, based on another post out there about FML, this employee's 12 week allotment would carry over into future employment with the same company. If he doesn't exhaust it now, you will be stuck allowing it if he returns within the 12 month period...