I am an Employee. How would you handle my FMLA situation

rocker68

Hi There,

 Would love some feedback from you seasoned HR pros on my current situation.

 My wife is diagnosed Manic Depressive and is on Social Security Disability because of her illness. In 2008 I was finally approved by HR for 11 days of intermittent leave per month. It took a while to get approved, there was a lot of back and forth with her psychiatrist and HR.

Around December 20th and 21st of 2008 I called in each day as per company policy to notify them I would need the day off for FMLA. A few days later, I was notified fmla was denied because I did not fill out a re certification form. I understand it's my responsibility to keep up with all this stuff, but with so much on my mind, I didn't even think of any re certification. I didn't know it had expired. So those days were held against the companies attendance policy. 

On January 2nd 2009, I was given a recertification form to fill out. Her physician filled out the form and faxed it on January 15th, and it states

• "Employees wife has a diagnosis of manic depression and has frequent episodes that require supervision".

• "Employee needs to work intermittently due to uncertainty of her disorder"

• "The employee can perform essential duties of his job provided his wife doesn't have manic or depressive episode"

On January 20th, I received notice from HR that FMLA was denied due to "The medical documentation does not support your request for FMLA leave and/or the nature and/or extent of your absences to date" Also states my absences will be treated under the companies attendance policy.With these absences I could very well lose my job. Was the physician not clear enough in her diagnosis, and why intermittent leave may be required?

I just spent one of the worse weeks of my life as my wife was going through a major depressive episode. Well almost the worse as my wife was hospitalized 5 times last year, once involuntarily on a overdose suicide attempt. 

I love my job and the company I work for, but the denial of the FMLA was very shocking and disappointing. She needed me and I was there for her. If there was anyone in my situation that didn't do the same, I would lose all respect of that individual.

So how would you handle my situation with the information I provided in this posting?

Thanks for reading and your time...

 

KMoore1

Effective last Friday, new FMLA rules control medical certification of a family member's serious health condition under FMLA.

 

The 2009 final FMLA regulations created a new, separate government form to assist employers in certifying the employee’s need to care for a covered family member with a serious health condition. <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />

The DOL’s Certification of Health Care Provider for Family Member’s Serious Health Condition (WH-380-F) may be utilized by employers seeking medical certification for a covered family member. The WH-380-F limits the information that an employer may request to:

·        Health care practitioner’s name, contact information, and type of practice/specialization;

·        Approximate date condition began and probable duration;

·        Medical facts sufficient to support need for leave (at option of healthcare practitioner, may include symptoms, diagnosis, hospitalization, doctor visits, prescribed medication, referrals for evaluation/treatment, regimen of continuing treatment);

·        Sufficient information that the family member is “in need of care” and an estimate of the frequency and duration of leave needed for such care;

·        If intermittent or reduced schedule leave for planned treatment is required, why there is a medical necessity for such leave, and the estimated of dates and duration of treatment and/or recovery periods;

·        If intermittent or reduced schedule leave is required for flareups, why there is medical necessity for leave to care for the family member and an estimate of the frequency and duration of required leave.

FMLA's regulations require that an employer advise an employee whenever the employer finds a certification incomplete or insufficient. The employer must state in writing what additional information is necessary to make the certification complete and sufficient. “Incomplete” means one or more of the applicable entries has not been completed. “Insufficient” means the information provided is vague, ambiguous, or non-responsive. If the certification is sincomplete, your employer should have told you this.

If the deficiencies specified by the employer are not fixed in the resubmitted certification within 7 calendar days, and the employee has provided no information regarding his or her good faith efforts to cure, or if the certification is returned but not cured, the employer may deny the FMLA leave.

 

It sounds like the employer is denying PAST leave, not leave you need to take in the future. I would ask the employer (in writing) what the specific deficiencies are in the certification and volunteer to have the treating physician correct those deficiencies, once you know what they are.

TXHRGuy

It's not clear to me that the employee has a responsibility to know when the cert expired.  Since the leave is intermittent, you can't plan on exactly when you need to take it.  Therefore, you are entitled to provide a cert only "as soon as practicable", assuming that part of the regs hasn't changed.  I think your employer is taking a very aggressive stance and probably not one that would stand up to any serious push back.  Moreover, they have to deny the past leave within 2 days of returning to work (unless that part of the regs has changed) ASSUMING they didn't know the cause of leave.  If they knew the cause of leave and they failed to deny it, it's covered under the act.

Additionally, if they have a problem with the cert, they really should be more specific about what the deficiency is so you can correct it.  Often, HR is directed to say as little as possible in FMLA letters, which creates problems.  It may be that the cert language does not specify in enough details the need for supervision or the consequences for failing to be supervised.  We're talking about an adult, not a minor, so "supervision" is going to be something that your HR department is not used to having as the cause of need for leave.  It would have been better to say that your wife will need "care" during her episodes rather than "supervision".

rocker68

Thanks for the excellent responses.

I brought the paperwork back to the doctor yesterday so we could look at it together once again, and it's plain as day, couldn't be written any better, so there is some "minor" nick picking going on here. The Doctor's assistant did inform me that she received a call from the company to verify the info, and asked her if she would be willing to "sign off on it". She said she couldn't because she is not the doctor. The caller asked her when the last time she seen the doctor at that clinic and the nurse said November. In November she was given 3 months of her prescriptions, but she has seen a psychiatrist since then. The person on the other end said she would just call her psychiatrist. Problem is, the psychiatrist listed in previous paperwork, she hasn't seen in years! Just speculating here, so maybe that psychiatrist was called and he said he hasn't seen her, so the HR person assumes she's not receiving treatment, and denied it for that.

I am far from being a troublemaker, and hate going to the extremes. But with the thought of losing my job that I love, especially during these tough economic times, I took all paper work to the local DOL office and had a very informative two hour meeting. This is what I learned:

• The employer cannot contact the doctor without my permission
• The submitted paperwork is sufficient. Especially considering the past history. Clearly she has a serious medical condition that could require me to take time off to care for her.
• It's my responsibility to keep track of when re certification is due. She said a lot of employers are proactive and take the initiative to remind the employee beforehand, but it appears my employer believes the less info the better to prevent approval of FMLA.
• If I get terminated on my next work day, I do have a legitimate legal case.
  
• There have been other complaints against my employer by other employees in reference to FMLA.
  
• The Department of Labor will do a full investigation if I choose to go that way. 
• A lot of employees abuse FMLA. So a lot of employers are skeptical and lump everyone in the abusive category.
  

I don't want to get the DOL involved any further, only as a last resort. So I called HR and requested a meeting on my next day of work. I informed her that I took the paperwork back to the doctor for a 2nd look, and he was surprised it was rejected. She told me everything should be okay, but there is some other paperwork that I need to get filled out. Anyone have any idea what this additional paperwork could be?

This whole experience has been so frustrating, my anxiety is through the roof! Just like last year there was a ton of going back and forth over such minor "technicalities". I'll have a update within a few days. Thanks again

TXHRGuy

1. I never call the physician except on speaker phone with the employee/patient present.
2. The submitted paperwork might not actually be sufficient and the DOL is not necessarily in a position to judge its sufficiency but, because the employer has not provided any details on deficiencies, the Company is now on the defense for failure to do so.
3. It's your responsibility to keep track of certs that they ask for.  If they did not tell you they would need a recert, assuming the initial certification stipulated that it was a life-long condition, then they don't need one although they are entitled to one if they ask for it up to once per year.  If they tell you after the fact that they want one, they are certainly entitled to one.  In my opinion, they are not entitled to deny leave because your old cert expired.  Intermittent leave exists because of conditions that create an unpredictable need for leave.  Getting it certified in advance is not your problem since the need for leave at that precise time was not foreseeable.  Your need for leave at some time was foreseeable, and you had no reason to suspect that your company would require a second certification unless there's more to the story here than you have so far relayed.
4. If you get terminated any time in the near future, you should see an attorney and visit with the DOL.
5. You should have DOL do a full investigation.  This is the best thing you can do to secure your employment because it puts the company on the defensive with respect to any future employment decisions.  Any negative employment decisions in the future will be tainted by the potential for an underlying motivation to retaliate against you for using FMLA and complaining to the DOL.  They will take a more hands off approach with you.
6. In my experience, not that many people abuse FMLA.  The worst cases I've seen have involved people with stress and anxiety related problems for whom FMLA leave becomes an enabler.  Sometimes they get the rest and care they need, and sometimes they get the time off to go get worse because they aren't making money and they're wallowing in their problems.  I feel sorry for people in that boat.  Outright abuse I have not seen, although I'm sure it exists.

Push the DOL investigation button in my opinion.

 

IT HR

If I am following everything correctly, I think you need to ask for the absences that should have counted as FMLA leave, but were put against the attendance policy, to be counted as FMLA so if you miss something in the future you are not always worrying about your job.

TXHRGuy - I have seen some abuse of FMLA.  At a previous company my employees had an attendance policy that was a points system.  I had some people that were trying to claim intermittent leave so they would not get points under the system when in fact they were just not showing up to work.  I did a lot of retraining and explaining about FMLA, applicable absences, etc. and some of this went away.  I actually had some employees coming to me telling me that certain employees were not on an FMLA applicable absence but had just not showed up to work.  I did a lot of recertifying and also did some investigating. 

I think for the most part there are legitimate reasons why people are applying for FMLA.  This post seems like one to me.  As an HR Director I do my best to help an employee that is going through a difficult situation like this and has seemed to do everything that was asked in the process of verifying legitimate need for FMLA.  This company looks like they are looking for every excuse to try to deny the claim.  I know that FMLA absences disrupt schedules and cause work to be redistributed to other people, but when a company takes care of an employee, they tend to have more loyalty to the company.  

 

TXHRGuy

He doesn't have to tell them in advance in the case of intermittent leave.  There's also the whole "if the company knew or should have known" business.

rocker68

Thanks everyone, you all have been very informative.

Had a brief meeting with HR today. Was told that it was denied because her doctor did not sign off on the paperwork. From what I understand, their Doctor was the one doing the contacting. Also, on our visit for him to fill out the recertification, it was his nurse that answered the questions. Maybe there was a call after that, but on our doctor's visit he was disappointed it got disapproved and said if we need anything from him to let him know. So seems odd he would not sign off on it. Tried to contact him today, and left a voice mail since he was busy.

Also, HR raised the point that the last visit my wife had at that medical clinic was back in November. That is true, but during that visit she was given 3 months of prescriptions. Also, this is a family medical clinic with several outstanding doctors employed there. So depending on availability she may see a variety of medical specialists over a period of time.

I took her to a psychiatrist last week, and he was the worse we have ever seen. Not one concern statement, no probing questions on her condition, he just basically told us what he can or cannot due. Got a list from her physician of recommended psychiatrists so we are searchng for one. 

So today I was given another re certification form to fill out. She told me I can't miss any days under FMLA until this situation is satisfied. Wow, that's great, my wife could experience a major panic attack and I'll have to say "sorry honey, gotta go to work".

In reference to the comment about having the DOL do a full scale investigation. I live in a fire at will state, and I'm concerned if I do this, that they will eventually find some outside reason to fire me. And with this economy the way it is, I'm very thankful to have a job with this company. I'm tempted to pull the trigger on this because I feel they are making this whole situation more complicated and difficult on purpose. I went through the same situation last year. It's frustrating running back and forth with all these re certifications, and as I mentioned my anxiety is through the roof!

But the lady at the DOL said we have a pretty solid case. I'm leaning towards given her the okay to move on this. If I do this, I guess my employer would have a more difficult time to fire me due to it possibly being related to the fmla situation. 

So what do you think? Pull the trigger?

Thanks

 

TXHRGuy

[quote user="rocker68"] Thanks everyone, you all have been very informative.

Had a brief meeting with HR today. Was told that it was denied because her doctor did not sign off on the paperwork. From what I understand, their Doctor was the one doing the contacting. Also, on our visit for him to fill out the recertification, it was his nurse that answered the questions. Maybe there was a call after that, but on our doctor's visit he was disappointed it got disapproved and said if we need anything from him to let him know. So seems odd he would not sign off on it. Tried to contact him today, and left a voice mail since he was busy. [/quote]

In my experience, the doctor almost never fills out the paperwork.  An administrator or nurse does it.  They won't sign it: only the doctor can.  Then it goes on a stack of stuff.   Then the doctor procrastinates or escapes his or her keeper's sight and leaves for the day, and you know it's really quite busy in the office, and out it goes without a signature.  Not uncommon.  Not a sign of anything other than doctors' offices are as inundated with paperwork and demands as HR.

 [quote user="rocker68"]Also, HR raised the point that the last visit my wife had at that medical clinic was back in November. That is true, but during that visit she was given 3 months of prescriptions. Also, this is a family medical clinic with several outstanding doctors employed there. So depending on availability she may see a variety of medical specialists over a period of time. [/quote]

The amount of medicine she was given is entirely irrelevent to the acceptability of your cert.  The cert is the only problem we know about right now and the only thing HR should be caring about is the length of time the serious health condition would affect your spouse as documented on the prior cert or, assuming they are entitled to a new cert, the acceptability of the current cert.  They are not entitled to another cert before that time has expired, or one year, whichiever is less unless they have reason to suspect that the conditions giving rise to the cert no longer apply (e.g., she got better sooner than expected, she died, you got divorced, it turns out there is no Doctor Smith and some lady named Tiffany who works as a diesel mechanic answers the phone at the number on the cert).  Remember: this is a business operation (typically hostile to FMLA) trying to operate under a very complex set of rules imposed by the federal government.  To make your life easier, it is important that you separate the wheat from the chaff.  On an administrative level, no matter how nice they may or may not be, they do not care about what meds, how much was prescribed, who prescribed them, which doctor it was, specifically, or a host of other things.  There's a universe of things they don't care about and/or are not entitled to.  You can see doctor X and have a cert filled out by doctor Y.  That's none of their business, as long as doctor Y is a healthcare provider within the meaning of the act (MDs are all healthcare providers).  Psychologists are NOT included but Psychiatrists are.

So, let's take it down to bare essentials.

1. One possibility is that HR is asking for a cert that they are not entitled to.  Has the prior cert expired?  Has it been one year since the last cert was signed?  Do they suspect it no longer applies?  Is this a different condition affecting your spouse than the prior cert?  If the answer is no to all 4 questions, then they aren't entitled to another cert and you should tell them so.
2. Another possibility is that HR is asking for a cert they are entitled to.  In that case, they have an obligation to tell you why the prior cert is deficient and give you time to remedy the situation in light of the context in which you are trying to get it.  For example, if you tell them the doctor's office is being slow, they have to allow for that in their timing.  There's no hard and fast limit to the time it can take to get a cert because of this requirement that all the facts of the situation be taken into consideration in the company's deliberation about when to say "it's too late".  Unless any of that has changed in the new regs (someone whose read them please chime in), they shouldn't be denying FMLA, they should be questioning the cert and telling you that your FMLA status is provisionally granted pending timely receipt of an acceptable cert.

It's not clear to me that they can simply say that you may not use any more FMLA time until the cert is completed.  I think they have to provisionally allow it and then take it away if the cert is never resolved.  Unless that's changed in the new regs, this seems very aggressive to me.  A lot here hinges on the time frame of the prior cert: how long did they say that your spouse would be affected by the serious health condition and therefore in need of supervision? 

[quote user="rocker68"]I took her to a psychiatrist last week, and he was the worse we have ever seen. Not one concern statement, no probing questions on her condition, he just basically told us what he can or cannot due. Got a list from her physician of recommended psychiatrists so we are searchng for one. [/quote]

Your situation is interesting and I'm sympathetic to the spot you are in, but HR will not really care about this in terms of how they administer FMLA.  I'm mentioning this simply to help you identify what does and what does not help you get proper use of your rights, assuming FMLA applies.

[quote user="rocker68"]So today I was given another re certification form to fill out. She told me I can't miss any days under FMLA until this situation is satisfied. Wow, that's great, my wife could experience a major panic attack and I'll have to say "sorry honey, gotta go to work".[/quote]

See above and ensure that they are entitled to a new cert.

[quote user="rocker68"]In reference to the comment about having the DOL do a full scale investigation. I live in a fire at will state, and I'm concerned if I do this, that they will eventually find some outside reason to fire me. And with this economy the way it is, I'm very thankful to have a job with this company. I'm tempted to pull the trigger on this because I feel they are making this whole situation more complicated and difficult on purpose. I went through the same situation last year. It's frustrating running back and forth with all these re certifications, and as I mentioned my anxiety is through the roof!

But the lady at the DOL said we have a pretty solid case. I'm leaning towards given her the okay to move on this. If I do this, I guess my employer would have a more difficult time to fire me due to it possibly being related to the fmla situation. 

So what do you think? Pull the trigger?[/quote]

I think I was clear on this before but I'll be even more super duper clear this time.  Once they become aware that you have complained through DOL, every employment decision they make about you from that point forward will be tainted by the possibility that it was retaliatory for having used your FMLA rights or for having complained to the DOL, both of which are very, very naughty.  That makes it much, much harder for them to take any action against you.

Every state except Montana is an "employment at will" state, including California.  All that means is that the employer can fire you for any legal reason or no reason and the employee may end the employment relationship at any time for any reason (e.g., the employer can't fire you because of your race but you can quit because your supervisor is of a certain race or, put another way, there are no illegal causes of quitting assuming no coercion on the part of the employer, which is a much larger topic).  However, any decision an employer makes, even under this "employment at will" doctrine, can still be questioned.  One can ask if the reason was legal or if the idea of having no reason was likely.  The company can fire you for a perfectly legitimate reason within their policies and procedures and still have it questioned as to whether or not that policy-driven reason was not merely a pretext for retaliating against you for using your FMLA rights or complaining to DOL.

In my opinion, you are far safer in your employment by pulling the trigger on a DOL investigation than not.

rocker68

You guys are great. Surely wish you worked in our HR department

[quote]One possibility is that HR is asking for a cert that they are not
entitled to.  Has the prior cert expired?[/quote]

Great question. I am not sure when, but when my two days off in December were denied is when I learned the cert had expired.

I believe it has been longer than a year. I have a lot of the FMLA paperwork dating back to late 2007. However, that was for my son, who is major manic depressive. In fact he just got released from an inpatient 6 month treatment facility. That whole experience believe it or not, was more difficult than this one! We searched and have no idea where her paperwork is.  

[quote]Do they suspect it no longer applies?[/quote]

Well her comments during our meeting:

•  "Your wife hasn't been seen at that clinic since November"
•  "Your wife missed her Doctor's appointment last week"
•  "She's not seeing a psychiatrist now?"

Tend to lead me to believe that they do not believe me. Yea, she missed the doctors appointment. No matter how hard I tried I could not get her out of bed, and she was refusing to go. This was a bad episode. We're currently searching for a good psychiatrist, and her primary physician gave us some recommendations. But anyways, the above questions/comments are irrelative (sp) to the whole situation.

[quote]Is
this a different condition affecting your spouse than the prior cert?[/quote]

No. She is manic depressive, ptsd, and major anxiety. In fact, she got approved for social security disability on her first application, which is very rare.Major Depression is a nasty disease. There is no cure, this is a disease that's going to require lifetime treatment. After going back and forth over last years certification, I was finally approved for up to 11 intermittent days per month.

[quote]If the answer is no to all 4 questions, then they aren't entitled to
another cert and you should tell them so.[/quote]

I do believe they are entitled to another re-certification, and I don't have a problem with it. The problem is how it's being handled.

The HR lady also briefly showed me some signed form she said was from the doctor with his signature refusing to "sign off on it" or something to that effect. I replied to her that I was shocked because at our last visit he was totally supported and agreed with her past and current diagnosis. She said well I can read signatures very well and showed me some other document with his supposed signature on it. I'm very sorry my mind is a bit foggy on what forms these were. I am so stressed! Manic Depression is a nasty disease and I have two people in the household with it! So dealing with the household situations and the complications with this FMLA issue, I feel like I'm a step away from the psych ward! Of course I won't go there. I gotta be strong to hold the bridge together.

A few more questions if you don't mind. 

1. Can I request copies that HR has in reference to FMLA paperwork? I would love to get a copy of the two forms she briefly showed me. I should probably take a step back, lay low, and wait for the investigation to begin.

2. Any idea how far back the DOL investigator can go when investigating this issue? I found a lot of interesting fmla paperwork when I first applied for my son a few years back. This was my first time experience with fmla. His psychatrist was not familiar with FMLA at all, and was confused by the questions on the form. After a few months going back and forth, they finally approved me for 4 hours a month for his 1 hour weekly appointments. However, his recommendation was 4 full days per month, not hours. So they finally approved me for 4 days a month.

Whew! You guys are great. I have to admit I was skeptical when I first registered here and how I would be treated with me being on the "other" side of the fence, but you have been extremely informative with outstanding advice. Thanks for that. 

TXHRGuy

Question Uno: You can request the copies but I don't believe they are obligated to provide them to you.  On the other hand, it would be unusual for them to keep them from you.

Question Dos: 2 years, I think.  Maybe 3.  They may still be interested in using past bad acts to establish a trend of intentional bad-faith but the penalty aspect I think only goes back 2 or 3 years.  There is personal liability in FMLA, too.  DOL can go after individuals or open the way for you to do so.

rocker68

Thanks...

Update: We had an appointment with her physician today and it went really well. Learned a few bits.

When HR initially called to verify the info on the certification paperwork that I turned in, doctor was not available of course, so his nurse answered the questions, and one of the questions was when the last time my wife had an appointment there. It was in November, and that was because my wife was prescribed 3 months of meds on that visit. She also told HR that my wife did miss an appointment last week, and as I mentioned earlier that was because of her disease. In the end, the nurse referred her to my wife's prior psychiatrist. Not sure if he was ever contacted, but my wife hasn't seen him over a year now. But my wife had 12 visits with her current physician during 2008. I think the HR specialist made a big slipup by telling me these things. For that seems to be the underlying reason for the denial.

So I believe the HR person denied the initial fmla certification "assuming"  I'm lying about everything. My wife missed her appointment so she must not really be sick. My wife hasn't seen the doctor since November, so how can she be really sick? She basically ignored what the doctor had written on the certification form, which was very similar to what was written last year, and made me have another one filled out, which he did today. It is very clear, legible, and this will be a tough one to deny. And the frustrating thing is that all the above has absolutely nothing to do with whether or not an employee qualifies for FMLA. What a huge headache this whole experience has been.

Next day back at work I'm going to request a meeting with the manager. I'm not sure what she's been told, but I want to make sure everything is clear, and she hears my side of the story. I'm not a FMLA abuser. I hate missing work, I hate my wife having these terrible random depressive episodes. and doing so has put us in greater debt. But as I promised my wife years ago, I will never let you down and will always be there for you, and that is what FMLA is all about.

Oh, and it took four days from the initial interview to receive a letter from the Employment Standards Administration Wage and Hour Division. "The conditions that you described will be looked into as soon as possible." Looks like it made it past the trash can and is heading on up.

I'm sure a few of you may be interested in how this whole situation unfolds, so I promise to keep you updated. Next update will be whether or not this re-certification gets approved or not.

Again, thanks for your participation in this thread and the great advice [:D]