doctor's note but no certification

Irie

We have an employee who has an attendance problem. Over the course of the past two years this employee has been intermittently absent for a condition that is probably recurring but of course, I'm not a doctor.

Each time the employee is absent I have given him an FMLA certification however, he never returns it. Instead, he gives me a doctor's note excusing him from work on the days he was absent. I have denied FMLA because I do not know if his condition qualifies as a "serious health condition."

Several weeks ago the employee did return the certification form for the week he was absent. The doctor checked #2 - absence plus treatment, and indicated the employee should be absent for one week however, the doctor wrote "unknown and cannot determine at this time" for the remainder of the items. I approved the week as FMLA but gave the form back to the employee and indicated I needed more information from the doctor. The employee returned the form stating the doctor would not give more information.

Two weeks ago the employee again missed four days of work. When he returned to work he had another doctor's note excusing him from work for four days. Again, I gave the employee FMLA paperwork. The certification is due tomorrow and again, I have no certification from the doctor.

What does one do in this instance? Approve each absence as FMLA based on each doctor's note? (The notes are all coming from the same doctor.) I'm sure if I don't give FMLA and get taken to court, we would lose. However, I don't think I have enough information from the doctor (actually no information from the doctor) about this qualifying for intermittent absences.

Thanks for your help.

joannie

It looks like it might be time to send the employee for a second opinion, at company expense.

Irie

[font size="1" color="#FF0000"]LAST EDITED ON 05-13-08 AT 12:16PM (CST)[/font][br][br]Thank you for your input joannie. I have never sent anyone for a second opinion before since we never had a relationship with a particular doctor. We now have a clinic we work with so they will be able to give us second opinions.

If you could give me a little help in this area I'd appreciate it. Do you send a new Certification with the employee to the physician doing the second opinion or would I send the sompleted Certification the other physician completed where he indicated "unknown, etc."? Anything else I should be aware of in doing this?

joannie

Irie,

This link may help you out. Fortunately, for me, unfortunately, for you, I have never had to request a 2nd opinion. More bad news, if I'm reading the reg correctly, you can't use the doctor you regularly contract with for this second opinion. Sorry I can't be of more help.


[url]http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.307.htm[/url]

Irie

Thank you for the information. We have needed second opinions for other situations (not FMLA related) and it was impossible to find a doctor who would perform the examination and render a second opinion.

I am reading it as you are that an employer cannot use their own doctor to give a second opinion. However my doctor could contact the employee's doctor for clarification. If I am reading the reg. correctly.

joannie

That's the way I read it. Good luck!

NaeNae55

Another thing to think about: depending upon how you word your request, this employee may be failing to follow procedures. When I send FMLA paperwork it absolutely has to be returned. If the situation isn't FMLA, the paperwork will show it. If an employee knows it doesn't qualify and wants to save bothering the doctor, they have only to be more up front about what is happening (and this situation should not involve repeated notes from the doctor.)

You might also want to revisit your policies. If you always allow a doctor's note as enough evidence to avoid any absenteeism penalties, then your FMLA paperwork really doesn't make any difference. The point of FMLA is to allow employees protected time off for illness (which you are already doing), while protecting the employer from the employee taking too much time. 12 weeks is a lot of time, but if you always allow a doctor's note then an employee could be gone 6 months of the year and it not matter.

Perhaps I am reading your post wrong, but you don't mention any policies other than accepting the doctor's notes. Do you have a limit or point system?


Nae

Irie

We do have a point-based attendance policy. I have accepted doctor's notes from employees if they are out more than three days and taking antibiotics. That would be for a one-time absence only and not for intermittent absences.

I have not allowed intermittent leave based on a doctor's note which doesn't tell me that the employee has a serious health condition or that the employee needs to be absent intermittently and for how long this should go on.

My letter to the employee clearly states that the complete, legible Certification must be returned within 15 days or the attendance policy applies. For this employee's past absences I have applied the attendance policy based on the notes from the doctor but now this particular employee has been absent more and more lately and is way up there with attendance points.

My thought is to give him another seven days to get the form returned and if he doesn't, apply the attendance policy to the absences based on the doctor's note. The employee has had more than enough chances to get Certification from this doctor and I don't understand why the employee doesn't get it - unless the excuses he is giving me from the doctor are filled-in copies. I would hate to think he would do that.

FunHRBanker

I have had one instance that I gave the papework back to the employee asking for clarification on the serious health condition. I then contacted legal resources and was told, much to my disappointment, that if the doctor has checked the box indicating that the condition qualifies, it DOES qualify, regardless if they provide more information or not. If you don't believe it, you should get a second opinion. If the certification is not returned, go forward like Irie suggested. Let us know how it turns out!

Irie

I finally received the certification and again the doctor checked absence plus treatment. He also said the probable duration of the absence was one week, unknown for additional treatments, and cannot be determined at this time for future treatments. The doctor indicated he gave the employee an injection and a wrist splint.

Since there is nothing indicated for intermittent does this mean that every time the employee misses work I have to give him another certification form for his doctor to complete? I don't know why the doctor doesn't just say the guy will need intermittent leave and be done with it.

Thanks for all of your responses and help with this situation.

FunHRBanker

If it's for the same condition, I'd say no. You can recert no more often than every 30 days. If the absences are for many different conditions, you would need a new certification in my opinion.

Irie

OK. I understand that but the doctor is certifying the absence for just the one week that the employee missed work. If the employee comes back and works for two weeks then calls off work for four days wouldn't you need another certification?

I'll probably just throw in the towel and charge them all to FMLA. Sometimes it just isn't worth the aggravation. We don't terminate at the end of 12 weeks anyway. I just don't want him to be terminated for attendance points and then for us to get hauled into court because some of those absences should have been counted as FMLA.

This is the worst part of my job...

FunHRBanker

We've all got one of these people.

If the dr. is certifying that the ee needed one week, then I would say yes, you need new certifications EACH time the employee is out. Do you/can you force the use of paid time off? I found that once we started this, employees were suddenly better much faster!

Irie

Unfortunately I was overriden by the PTB when it comes to using PTO first. They didn't think it was fair for an employee to use all of their PTO and then have no time left for vacation.

So now the employee can use unpaid time for their own serious health condition if the condition qualifies for FMLA. This is a problem too because then we have to go back and credit the employee the PTO after approving the FMLA if they don't want to use PTO once we've already paid it.

No wonder I'm such a wreck....

LindaS

Since the doctor is only certifying the one week's worth of absences, that is all that should be approved. If he continues to miss work, additional FMLA certifications would be required.

I would NOT recommend approving leave without having appropriate medical certification on file verifying the need for the leave. If the doctor is only certifying the leave for one week, there is a reason for that. Do NOT read more into the certification than is there.

Irie

Thanks Irene. That's what I did; approve it for just the one week.