Doctor Clarification

FunHRBanker

Employee is back to work after knee surgery, with restrictions. At her next appointment, can I ask her to "recertify" her restrictions, indicating a possible end date for them? The 2 I have on file have only the date they were written. It's not that the restrictions are a severe problem, but with this particular employee, I need all my ducks in a row.

Susan in La

We usually send our employee to their physician with a list of essential duties, asking that the physician state which ones can and can't be performed, and the length of the restriction. If it has no end date, we require a recertification every 30 days.

FunHRBanker

Perfect! I will do that, thanks.

FunHRBanker

Can I call or fax the doctor for clarification? Basically, we need to know the length of the restriction. She's still icing pretty much all day and the knee surgery was done on 1/6. Like I said, I just want to have everything in order for this employee.

NaeNae55

I would be very careful about contacting the doctor directly. Your best bet is to give it to the employee and ask her to fax it right away.


Nae

morrisg

Contact of with the physician: The FMLA says, as an employer you may not contact an employee's physician directly. The only exception is with the employee’s permission, (I would get it in writing) to contact the physician for clarification and verification related to information on the form. Without this permission it would be illegal to make contact.

Recertification request: You may ask for recertification if the first certification did not have an estimated date or time for the period of incapacity for your employee. If I read your note correctly, that sounds like the case in your situation. Recertification can be requested if the employee ask for a leave extension, or if you have reason to doubt the validity of the certification. If the physician never put a return date on it, or the date put has expired, then you have a right to ask for recertification. The most common problem I have is that the physician leaves it blank or writes "undetermined". In this case I send the employee back since the law does allow the employer to ask the physician to provide in their best medical judgment how long the leave should last.

stilldazed

With your employee's authorization, you can contact the physician, but if you ask for it in this situation, you should ask for it with every situation and then depend on the employee to furnish or not furnish the authorization. Find a copy of a HIPAA-compliant medical authorization and adapt it for FMLA.

Aside from that, you might also consider adopting the DOL medical questionnaire. Again, the caveat would be to be consistent in this situation. If you choose to use new forms or procedures with this situation, you would minimize your risk for making the change if you document someone in your process that you are making a program-wide change and not just a change for the current FMLA concern.

One more thing, my experience has been that when an employer is suspicious of an employee in FMLA, there is reason to be because of the employee's prior work history. I would encourage you to take a look at exactly why you are suspicious. If you find that work performance issues are surfacing as suspicious FMLA issues (which is quite common), go back to your performance evaluation and disciplinary processes to see if they need to be tweaked somehow.

FunHRBanker

Because of this employees previous history and knowing her personality, I believe she is milking this like no one's business. I further believe she is trying to make a case against the teenager who caused the car accident she was in. The knee was a problem before the accident; this was a way for someone else to pay for the surgery. Anyway, I will take all of your advice to heart going forward. Thanks!

morrisg

In all due respect, just be sure your feelings about the employee milking this is based on the FMLA statute which says you must "receive information that casts doubt on the continuing validity of the certification." The operative word here is received information; it cannot be your gut feeling, although I certainly sympathize with knowing the truth but not being able to logically and materially prove it.

Thanks, good luck

FunHRBanker

We did not deny the leave or anything like that. I don't doubt that there was a serious medical condition nor are we allowing her to do anything outside of the restrictions. I just want clarification from the doctor so that this doesn't turn into 6 months of icing, constant sitting, etc. because there isn't a limitation on the form. I did ask the employee to have the doc put a length of time when she goes in for a follow up next week.

Thanks for listening to my vent!! Everyone has at least one employee who works the system

ACU Frank

One way around this is a zero restriction policy for anyone coming back to work with a NON work-related injury.

morrisg

Frank makes a good point. We do not allow anyone back for a personal injury, and often for a WC injury.