FMLA serious illness form

dealac

I have an employee who has a physician certification to cover absences for dizzy spells. Problem is we were seeing a pattern in his absences. RE: Friday/Monday, put on a job he didn't like or if he was mandated to work a week end. Because of this I asked for re-certification and the physician said he would not require treatments 2 times per year. So I told the employee this wasn't considered a "serious or chronic" condition. Well the angry employee goes back to the doctor and now the doctor indicates he would be seen 2 times per year for consultations. I don't think consultation is a treatment but could be very wrong. Any help will be much appreciated

Julie Athey

This is one of those situations where I am afraid there is no clear answer, at least none that I am aware of. I have never seen a distinction made between office visits for the purpose of treatment and visits for the purpose of consultation. The regulations say simply that treatment by a health care provider means an "in-person visit."

The better argument is that the only reason the doctor agreed to see the employee twice a year is because the employee asked him to. The 2008 regulations state that "Whether additional treatment is necessary ... shall be determined by the health care provider." Unfortunately, that is in the section that addresses three days of incapacitation, not the section that addresses chronic conditions. It is only in the comments to the regulations that the DOL says the determination as to whether two visits per year are necessary must be made by the doctor, not the employee.

So, I think your best argument is that the employee improperly influenced the doctor to certify that two annual visits were needed. However, in my opinion this would be a very risky argument to make and you should not do so without consulting your attorney.

Julie Athey
Author- FMLA Compliance: Practical Solutions for HR
Editor - FMLA Compliance Bulletin
Author - HR Q&A: Family and Medical Leave Act

NaeNae55

You can always require a second opinion. You have to pay for it, but it couldn't hurt. You can also ask for clarification from the employee's doctor. Send them the job requirements and a carefully worded letter asking if the condition would lead an employee to be more likely to need time off just before or just after weekends, etc. If you are going to go the letter route, you might want to consult your attorney to make sure you don't get yourself into trouble.

Good luck!

Nae