FML Question
4429354
25 Posts
Scenario:
An employee brings in the FML certification from the doctor and it states: Off work 2-3 days and is prescribed medication. The employee only misses 2 days off work, would this be approved under FML? I've read that a serious health condition is also "any absence to receive multiple treatments for a condition that would likely result in a period of incapacity of more than three days if not treated". Is medication considered multiple treatment?
Comments
Any period of absence to receive multiple treatments by a healthcare provide for a condition that would likely result in a period incapacity of more than 3 consecutive, full days if untreated, such as for cancer (chemotherapy) or kidney disease (dialysis).
I would not have considered this to be an FMLA qualifying event unless it involved an overnight stay in a hospital.
Continuing treatment involves a period of incapacity of more than 3 consecutive , full calendar days and any subsequent treatment or period of incapacity for the same condition that also involves either:
-Treatment by a healthcare provider two or more times within 30 days of the first day of incapacity, or
-Treatment by a healthcare provider at least once that results in a regimen of continuing treatment under the supervision of the healthcare provider. (Prescription medication would fall under regiment of continuing treatment.)
See 825.115 Continuing treatment.
It goes on but I think this might cover your situation.
I thought you said the documentation was 2-3 days?
Any period of absence to receive multiple treatments by a healthcare provide for a condition that would likely result in a period incapacity of more than 3 consecutive, full days if untreated, such as for cancer (chemotherapy) or kidney disease (dialysis).
I would not have considered this to be an FMLA qualifying event unless it involved an overnight stay in a hospital.
Continuing treatment involves a period of incapacity of more than 3 consecutive , full calendar days and any subsequent treatment or period of incapacity for the same condition that also involves either:
-Treatment by a healthcare provider two or more times within 30 days of the first day of incapacity, or
-Treatment by a healthcare provider at least once that results in a regimen of continuing treatment under the supervision of the healthcare provider. (Prescription medication would fall under regiment of continuing treatment.)
See 825.115 Continuing treatment.
It goes on but I think this might cover your situation.
[/quote]
One of the problems with the FMLA rules is they assume you have passed your medical board exams.
Flu CAN cause absence greater than 3 consecutive days absent treatment. So can a broken arm or a puncture wound requiring stitches (since you COULD bleed out and expire). Will any one specific case of flu cause that type of absence in any particular employee? I don't know and probably you don't either. FMLA or not? Employers are placed into a bind over this.
Because you have to think about what is POSSIBLE absent any treatment AND consider prescription medication to be a regimen of continuing treatment, nearly anything for which medication is prescribed by a healthcare practitioner is FMLA qualified.
DOL went away from that interpretation briefly years ago and then reversed themselves and said if the definition was met, the illness or injury was qualified. In other words, the examples of chemo and dialysis are irrelevent in describing the severity of the injury or illness required to meet the threshold of FMLA qualification.
FMLA can be confusing to anyone even the pros! FMLA has six different ways to qualify for a Serious Health Condition (SHC) assuming they are approved for FMLA in the first place (worked year, 1250 hours and 50+ EEs). Hopefully this can shed some light because you need to consider some of the other qualifying reasons especially 825.115(c) thru 825.115(e).
Six ways to qualify for FMLA:
I hope this is helpful. It's as detailed but condensed a version of the previsions that I can muster for a SHC! It appears to me that you need to know more info, is it a long term condition or is a recovery treatment!?
[quote user="4429354"]The situation was just the flu. We've actually had 2 employees in the same week have this scenario. One paperwork said 2-3 days and another said 3-5 days. The first employee only missed 1 day and the second employee missed 2 days. Both did receive a prescription medication. So based on the information here, these need to be approved because without the medication they could have potentially missed 3 days?. Sorry if I keep repeating my questions. I just want to make sure I've got it covered. Thanks for all of your help.[/quote]
The one that said 3-5 days certainly because the healtchare has documented a medical opinion that it could be 3-5 days even with treatment.
I would designate the 2-3 days as well but I suppose you could argue the point.
Strategically, I prefer to over designate (particularly time requested by the employee rather than discovered and designated by the employer), and then worry about it if and only if there is a question about FMLA time being exhausted AND consideration of any adverse employment decision. This tends to a) simplify life and b) enhance morale. Of course, if your company is really large and you have a lot of cases of FMLA being exhausted and you want to minimize review of each individual case, this is not a good strategy. It is also not a good strategy if this tends to lend itself to abusive requests for FMLA, but that was not my experience even in a call center environment.
I would not handle either as FML. Even with the prescription neither met the three day threshold. FML has the time qualifier so that every small absence would not become a worrisome factor. There has to be an illness plus the time factor for FML.
For the sake of the reasoning behind the three day threshold (so that every absence does not have to take up administrative time) we have changed our standard to 5 consecutive days absent before we begin FML.
There are some competing interests here. I’m a detailed girl that likes to be surrounded by facts and I don’t feel I understand enough to offer my two cents, so I’m going offer my thought process instead. Let’s step back and take a broader look at this situation. What really are your choices?<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
1. If you designation them as FMLA, then the time gets docked from their FMLA bank and not the attendance system.
a. This is only going to be an issue if their FMLA expires and you (the employer) cause them undue hardship of loss of job/benefits because you potentially improperly designated it as FMLA when they really needed those days for a “real” qualifying event. (the courts rule in favor of the EE in this situation).
b. This runs the risk of REALLY confusing the supervisors and managers on what a “qualifying” FMLA event really is. It can bring a sense of “HR really doesn’t know what they are doing, they just do whatever they want” attitude. This one is really hard to recover from!
2. If you do not designate it as FMLA and you count it against their attendance and you ultimately fire them for poor attendance, then you are potentially subject to a law suit because you didn’t “protect” their time under FMLA for a possible qualifying event.
a. Attorneys don’t have to be right or have all the facts to accept a claim and take you to court. And you don’t have to be wrong as the employer to be in court paying lots of attorney fees either.
3. If you do not designate it as FMLA but do not count it against their attendance, then you are not at risk of being sued by that person because you aren’t violating any of their rights. However, you do run the risk of “discriminating” against other employees to whom you did not extend the same exceptions. And you run the risk of being seen as a push-over and no rules apply if you do this enough (means lots of times). If you do it in moderation and with a consistance that is fair and equitable then it's seen as being a fair employer.
a. The goose and the gander have to be the same especially if one is a woman, minority, etc.
As simple a question as it is, it isn’t! No one action is independant of all the others! You need to consider the percentage of risk with respect to each scenario. I would consider what we did in the past with these cases. Is that what you want to do here? Do you want a different system? etc. If you like the way it was done before, by all means continue. If you want to change it, then that’s where you have to be concerned for the perception of retaliation from any employee. I would determine the standard of how to proceed, educate my management staff to that way, announce it to the EEs and answer any questions about it; then I would stick to it! Generally employees don’t question standard procedures, it’s when we start mixing it up and they don’t know what we are doing because it constantly changes that they become alarmed and suspicious of us as employers.
At our company, when you have something that is very questionable or the employee has a strong case against the company’s claim we play it safe and give the benefit of the doubt. Meaning to say we drop it into “no man’s land” and don’t count it against either FMLA or the attendance but we offer a strong warning of not repeating this process along with it.
On an even broader note, you need to consider changing the process of allowing people to return before they are medically permitted. Our employee’s have to have a return-to-work (RTW) before hitting the floor. If they feel they can come back sooner, I have them call their doctor to have the release date changed and faxed to me. Then you aren’t going against doctor’s orders and putting your company at a higher percentage of risk. This would have prevented this from becoming the monster that it is currently.
For the sake of the reasoning behind the three day threshold (so that every absence does not have to take up administrative time) we have changed our standard to 5 consecutive days absent before we begin FML.[/quote]
Cappy,
Absence for the treatment of an injury or illness that "could" lead to incapacitation in excess of 3 days were the person not to receive care, and the person does receive a regimen of continuing care also qualifies (see 6(2) in Heather's post, above, but I can find it in the regs if you prefer). In one case, the doctor says the incapacitation will be 3-5 days and provides a regimen of contining care. Sounds like they've met the black letter law standard. The other case is arguable since the healthcare practitioner is not on record suggesting the condition could result in more than 3 days of incapacitiation. This is the biggest hole in FMLA.
I'm not well versed in the public sector, but I don't see how you can take a 3 day minimum standard and simply make it 5. How do you handle intermittent leave and cases of ongoing treatment for conditions that "would likely lead" to more than 3 days of incapacity absence such treatment? Let's say a person misses 1/2 of every other day or every third day for radiation therapy or every other Friday for chemo plus perhaps some one random day for out patient surgery to remove minor tumors and take biopsies. Alternatively, what about the person who leaves mid-day on Monday for surgery to remove an infected appendix but the doctors caught it before it ruptured and the individual is back to work on Wednesday morning, having missed less than two days. I'm going to say that in both of those cases, they don't meet your criteria but you would be in violation of the regs for denying FMLA coverage if the employer was under FMLA obligation and the employee qualified by tenure and hours worked (and was able to timely produce a cert that meets regulatory requirements).
As Heather discussed, I'm also a big fan of requiring return to work authorization. This can mitigate risk for the company by keeping people away from work until they are cleared by a healthcare provider to perform their job safely. Cynically, I think it also often has the effect of forcing people with borderline or abusive absences to go back to the doctor and pay for another visit while losing some earnings, which makes them think twice about whether or not they want that time off next time around if they don't really need it.
-T
[quote]Absence for the treatment of an injury or illness that "could" lead to incapacitation in excess of 3 days were the person not to receive care, and the person does receive a regimen of continuing care also qualifies (see 6(2) in Heather's post, above, but I can find it in the regs if you prefer). In one case, the doctor says the incapacitation will be 3-5 days and provides a regimen of continuing care. Sounds like they've met the black letter law standard. The other case is arguable since the healthcare practitioner is not on record suggesting the condition could result in more than 3 days of incapacitiation. This is the biggest hole in FMLA.[/quote]
I appreciate your comments and in fact agree if the illness were continuing. However both employees returned to work, though I do agree that they should have signed clearance from the doctor, before the FMLA statutory time limit for FMLA. My comment was based on the limited information assuming that their return to work meant they had no continuing problem or absence except taking medication that did not interfere with their job performance.
[quote]I'm not well versed in the public sector, but I don't see how you can take a 3 day minimum standard and simply make it 5.[/quote]
It actually is not a public service standard. With FMLA you can always do more than the statute as long as you do the same thing for each employee. You just can't do less. Secondly we have two sets of working hours 40 hour people and 56 hour people which is a whole other matter for using a different standard than the three day FMLA qualifier
[quote]How do you handle intermittent leave and cases of ongoing treatment for conditions that "would likely lead" to more than 3 days of incapacity absence such treatment?[/quote]
Such leave is handled differently than an absence say for the flu or other absences where an individual may return to work under the sick leave policy before the absence would qualify for FMLA. On the other hand a scheduled surgery begins FMLA at the first day of the absence. Intermittent leave would qualify the same way. Intermittent leave may even be unscheduled by the medical provider. Example migraines. Unpredictable but a continuing medical problem that may be certified under FMLA. There would be no need to reach a time factor, each absence for the migraine would count under FMLA.
i was hoping to get a response sooner but i had to look into some state regs for forloughs, but i must say that some type of action needs to be taken ASAP! we can go back and forth for days but what i'm worried about is your fmla designation time frame of 5 days. you need to get a response to the employee within 5 days or you can't designate any of it as fmla. you can do one of two things:
I would really talk to my supervisor's about this issue and the problems that it brings up and the unecessary risk brought to the company for something so simple.
I think I have confused some about the five days I posted. I really appreciate the concern but let me see if I can be a little clearer.
I am not referring to the FMLA requirement of notices being given within the five days of being notified or discovering a qualifying event. Nor am I referring to notice requirements if an employee request FMLA. That also has to be responded to within five days. We are talking about two different things.
A serious health condition is an illness, injury, impairment or physical condition that involves either inpatient care or continuing treatment by a health care provider. If it is inpatient care no time frame exist, FMLA starts immediately with all notices sent within five consecutive work days. On the other hand an incapacity lasting more than three days may be designated as FMLA with medical certification requirements and notice requirements after the third full day of incapacitation. No notice is sent or medical certification is required until the three day threshold in FMLA is attained. If one sent notices every time an employee was simply out "sick" then FMLA would be all the person would ever do.
Based on this aspect of FMLA as specifically described as a three full day absence, incapacitated; we simply use a five day incapacitation before we assign FMLA under the same circumstances as the three day threshold. Employees are under our sick leave policy through the fifth consecutive day of absence. After that they are placed under FMLA with all notices given at the statutory time as found in FMLA. If that incapacitation changes during the five days, just as if the same change were to take place if it were the three days, everything is handled the same. This does not change or reduce any FMLA protection nor does it change the notice requirements. We just use five days instead of the three days to reduce cost to employees for being out with colds and the like and administrative cost for having to administer FMLA so soon.
This change was made at the City Hall HR level with research and approval from a battery of city attorneys. I hope that explanation clears up my post about the five days and why I still would not have used FMLA for the original poster. Yes the medical certification estimated 2-3 days but that is not what the employee used, according to my understanding. Therefore I do not feel the absence lived up to a qualifying FMLA event.
I hope that clears up or at least better explains my five day comment. [:P]
[quote user="cappy"]For the sake of the reasoning behind the three day threshold (so that every absence does not have to take up administrative time) we have changed our standard to 5 consecutive days absent before we begin FML. [/quote]
Perhaps I did not understand.
Were you saying you moved up the notification/decision period to 5 consecutive days?
You can't take a "more than three days" of incapacity threshold and simply declare the threshold to be five days and your response doesn't make it sound like that's what you think you are doing, so I'm lost. What did you mean in that post?
FML has to begin at some point. No need to go into what protections it offers whenever or for what ever reason that there is a qualifying event at some point. My point is that under certain circumstances FMLA allows three full consecutive days of incapacitation to lapse before FMLA begins. The reason is that you can't begin FMLA for ever minor illness out there that will create a sick leave absence. We allow that incapacitation to be five full consecutive days instead for the same reason, so that you don't have to begin FMLA for every minor illness that will create a sick leave absence. This can be done as long as the same standard is used for every employee, not just in our department, but each employee citywide. Our sick leave policy is in effect during those five days just like it would be in effect if we assigned FML after a three day lapse.
"More than three days" does not mean 'just three days'. It means that you can't set a threshold of less than three days. You can allow more if it benefits the employee under your sick leave policy, you just can't do less than what FMLA provides. There is nothing that disallows a two day longer time of incapacitation threshold so that an employee may return to work before we start medical certification requirements under FMLA. Could be that no one else is doing this or even thought of doing this but it is certainly permissible. The benefits we have for the additional two days are that it is more friendly to our employees, less costly to the employee for absences of a minor nature, and having less administrative time spent on incidences of a minor nature.
If my statement is used to broad brush each FMLA circumstance then that would not work any better than any event that would qualify as FMLA. Circumstances vary. (Not saying that is what you are doing TX but I have to explain as best I can.) But suffice it to say that if an employee is out and has called in sick with a cold, the employee is under the company's sick leave policy. If on the fourth day the employee calls in sick then it is allowable at that time under FMLA to request medical certification and begin FMLA procedures. Allowable. . not wrote in stone that FMLA must begin. We extend our sick leave policy to five days. If an employee calls in on the sixth day, being "more than three days", we begin FMLA procedures. Any notification procedure begins at the start of a qualifying FMLA event.
As a reminder this is not an isolated decision done in a vacuum. It is a decision made at the city's highest H/R level with the concurrence of the city attorneys that, of course, practice employment law.
Something strange has happened with the timing of the posting of replies.
Your explanation 2 or 3 posts up was perfectly clear.
Weird.
In any case, you are making a point about process, not about about decision criteria, and it makes sense to me.