Pregnancy/Medical Certification & FMLA
singersoll
8 Posts
I am having a hard time figuring out when you can ask an employee for an FMLA Medical Certification when the employee is pregnant?
Comments
We receive medical certification once the employee has given birth. If they are being put on disability due to a complication of pregnancy, then we request medical certification at the time of that event.
[quote user="efeldman"] We receive medical certification once the employee has given birth. If they are being put on disability due to a complication of pregnancy, then we request medical certification at the time of that event. [/quote]
I ask for certification at the first incident of lost work time. Pre-natal care is also covered and those appointments often interfere with work schedules. I avoid a lot of drama by discussing the form in detail and explaining that it's not important if the date of birth on the form doesn't line up with the data the child is born.
Ok now I'm confused. I know you were speaking of DOL but my understanding is that pregnancy is not a category under a serious health condition in FML. It can be handled under FML a bit differently as guided by DOL opinions, but not as a serious health condition unless there is a complication, as I understand it.
I understood that a medical certification cannot be asked for simply based on the pregnancy. We are bound by the health care provider and mother once we are notified that there is a problem or when the EE becomes a safety issue to themselves (not the baby) or to others. I have always found that strange but that is the law. In other words if an employee cannot don their protective gear rather it is from a male with a fractured bone or swelling from built up fluid from pregnancy, the issue is safety for both cases not the pregnancy itself. Both people would be relieved of duty under FML until such time they could don the required protective gear.
I'm not an expert so someone please set me straight on any part of this so I can make sure I am doing the right thing.
[quote user="cappy"] I'm not an expert[/quote]
I'm pretty comfortable with FMLA.
18. 0 29 C.F.R. §§ 825.114(a)(1),(2). The FMLA regulations
explain that "inpatient care" means at least an overnight stay at a
health care facility, and includes any related period of incapacity
or subsequent treatment relating back to the inpatient care. Id. at
§ 825.114(a)(1). "Continuing treatment by a health care provider"
covers five situations: (1) incapacity of more than three consecutive
calendar days that involves either (a) treatment two or more times by
a health care provider (or under the direction or orders of a health
care provider), or (b) treatment by a health care provider on at least
one occasion resulting in a regimen of continuing treatment under the
supervision of the health care provider; (2) any period of incapacity
due to pregnancy, or for prenatal care; (3) any period of incapacity
or treatment due to a chronic serious health condition requiring
periodic visits for treatment, including episodic conditions such as
asthma, diabetes, and epilepsy; (4) a period of incapacity which is
permanent or long-term due to a condition for which treatment may not
be effective, although the individual is under the continuing
supervision of a health care provider (e.g., Alzheimer's, severe
stroke, or the terminal stages of a disease); and (5) any period of
absence to receive multiple treatments from a health care provider
(or on orders or referral from a health care provider) for restorative
surgery or for a condition that would likely result in an absence of
more than three consecutive calendar days without treatment (e.g.,
cancer (chemotherapy, radiation), severe arthritis (physical therapy),
kidney disease (dialysis)). Id. at § 825.114 (a)(2).
http://www.eeoc.gov/policy/docs/fmlaada.html
So, without taking things to the extreme: a pregnant person going to a prenatal care appointment with a healtch care profider, a pregnant person with pregnancy induced hypertension put on bed rest are entitled to the same FMLA protections. Additionally, be aware that a person who is pregnant and who becomes ill with, say, strep throat, may be treated differently than a non-pregnant individual because the infection may be viewed as a serious health condition because the patient is pregnant and therefore treated more conservatively (e.g., bed rest for a week, constituting incapacity for more than 3 days). So, although the mere fact of being pregnant is not in and of itself a serious health condition, and I didn't mean for it to be taken so literally, pretty much everything connected with prenatal care (my original statement) is covered and, moreover, many kinds of common illnesses become serious health conditions when they afflict a pregnant person because the standard of care will be more conservative.
There is nothing wrong with asking for a cert when someone goes to a pre-natal check up because that is time that should be counted against their FMLA alotment.
Know something. . .you hit on the problem I was having. Even though I knew the things you posted, I did take your previous response too literally. Thanks for taking the time to get me back on the right track. [Y]
Know something. . .you hit on the problem I was having. Even though I knew the things you posted, I did take your previous response too literally. Thanks for taking the time to get me back on the right track. [Y]
[/quote]
Glad to help. FMLA is a jungle that mixes the trees of statutory and regulatory fact with the vines and weeds of unsettled law. It's maddening.
[quote] Glad to help. FMLA is a jungle that mixes the trees of statutory and regulatory fact with the vines and weeds of unsettled law. It's maddening.
[/quote]
Just to let you know . . . that is a great analogy. I will be using that sentence as a direct quote in my next 'what a supervisor needs to know' class.
[quote user="jkrasin"]There is something VERY WRONG with asking for a cert when someone goes to a check up then counting it against their FMLA. A person has to want to use their FMLA. Until they ask, unless there job is in jeopardy, they do not HAVE TO use it. They can use regular sick time.
[/quote]
That's entirely incorrect.
The employer is responsible for determining what leave is and what leave is not FMLA designated. The employer is entitled to count FMLA time for each absence of an eligible employee during a covered absence. Leaving work for a covered 1 hour checkup is treated the same as leaving work for dialysis. Whether the employee may or must use their sick time during their FMLA time off is also up to the employer.
It has long been established that the employer is only required to give the total time required under FMLA, not that period of time plus vacation time plus sick time or any other combination of time off allowances.
PS: keep in mind that this is a very old post. The 2008 regs are no longer current. However, the substance of this discussion remains true today.