SICK??? Quick Response Please

Ee calls out sick 5 days in a row. she is placed on fmla leave. brings in doctor's note when she returns that just says "patient may return to work 3/18/04" No diagnosis is given. She does not return her FMLA certification of health because she claims it wasn't a serious illness it was the flu. Her supervisor was told that she was having some internal problems and was being treated by a women's health center (which is where the note is from). Two questions here 1) May I ask her for a diagnosis from the docotor? 2) May I still demand the certification of health?

Comments

  • 14 Comments sorted by Votes Date Added
  • I don't think you can ask for the diagnosis, she was out and being treated by a doctor, she brought in her release to return from work. Did you send out notification that the time was being counted as FMLA?
  • Yes, EE was sent FMLA paperwork but now refuses to provide the certificate of health info stating that the event was not FMLA qualifying - that she only had the flu. Is there no way for us to confirm that her absence was or was not FMLA qualifying? Her original story to her supervisor was that she was being treated for an internal problem at the women's center. The doctor's note does not state that she was under his care from such and such a date to so and so a date it just says "patient may return to work".
  • I took this from the DOL web site. See section 1) What does your handbook say about attendance, and providing proof of time out for being sick? OUrs states that any sick time over 3 days may require Dr's certification.


    Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves either:

    any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical-care facility, and any period of incapacity or subsequent treatment in connection with such inpatient care; or
    Continuing treatment by a health care provider which includes any period of incapacity (i.e., inability to work, attend school or perform other regular daily activities) due to:
    (1) A health condition (including treatment therefor, or recovery therefrom) lasting more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition, that also includes:

    treatment two or more times by or under the supervision of a health care provider; or
    one treatment by a health care provider with a continuing regimen of treatment; or

  • Flu can be considered FML if it falls under the absence plus treatment guidelines. I do not grant FML unless they return the paperwork and generally it is in their best interest to return it. Will she get "charged" for the absences? How does your attendance policy handle it? It is my understanding that if you are aware that absences could be FML you can require the ee to use FML. You could ask her if she got a prescription for her illness. If she says yes it is FML per the absence plus treatment guidelines and you could notify her that you are going to count it as FML. Absent that info I don't know if you can determine whether it is FML or not and I think you are stuck to take the note and apply it to your attendance policy. If you do count it as FML and she refuses to get the paperwork done, I would make a note as to why you allowed FML wihtout certification papers somewhere where you can access it if needed in the future.
  • NIJJEL: Follow your attendance policy. Mark her attendance controller as an excused sick days off and go on to more important things. You have made a written and mental note put it in her file and save it for a "rainy day". If your are really concerned, call the doctor's office to validate the information form provided to you. HIPPA is going to get you very little information from the physician's office. Diagnosis is not important at this point and you should not ask either the ee or the physician about the medical reason he/she was treating your ee. That is private and confidential and much more information than you have a need to know.

    Now that I have relieved you of this worrisome though and cut your work load, you may also have a Blessed day!!!

    PORK
  • [font size="1" color="#FF0000"]LAST EDITED ON 03-19-04 AT 02:07PM (CST)[/font][br][br]I think you CAN ask for the diagnosis -- the DOL Certification form does just that in question 4. It may be PHI, but it is PHI you need in order to administer your policy consistently. I agree that new HIPAA rules have led to a reluctance on the part of doctors to complete the form, but I don't want to set the precedent of granting FMLA without the all the facts.

    If the doctor completes the form and hands it to the employee, there is no HIPAA violation, and if the employee hands it to me, same story. An alternate solution is to have the employee provide the doctor with written authorization to release the completed form to me.

    In my mind, there is a difference between a sick employee who is unable to work, and an employee who stretches a bout with the flu into a 5-day absence.
  • Why is it important to you to know what her diagnosis was? It sounds to me as if she doesn't want you to know what she was being treated for. If she wants to keep that confidential then let her know you have to treat her absence according to the attendance policy OR she can complete the FML paperwork and be excused.

    Some people like to keep their health information private and yes that sometimes includes HR. Let her choose to classify her absences if she doen't want to provide the information.


  • It is important to know if it qualifies as an FMLA absence or not as if it does not, she can be terminated. We do not want to state this as yet to the employee however,
  • I don't think you can necessarily disqualify her without the certification. I wouldn't. You are begging for a lawsuit. As I said before the flu would qualify with a prescription. AT&T found that out the hard way.

    She has no idea she is going to be fired and your "tricking" her to give up her FMLA rights (she said it wasn't FMLA), only to lay the hammer when she has no out. That looks like the big, bad company abusing the poor ee to a jury. I would be surprised if that would even make it out of your grievance procedure.

    She is going to cry FMLA once you term her. If you deny it you better be 100% sure you've followed that script to the letter, or you could be in trouble.

    I would follow your attendance policy and tell her she is going to be termed and give her the option to fill FMLA papers. That is the safest route. I can see the supervisor scheming in the background on this one. I would not allow it.




  • Certification is one thing. Diagnosis probing is quite another. No, you cannot ask for a diagnosis. The DOL form does not require the physician to enter a diagnosis, nor should any company form. Diagnosis is none of the employer's business and certainly should not enter into the decision process.





    Note: The preceeding is my personal opinion and has no value beyond that. Although it may be 'sorta offensive' or 'indeed offensive' to someone out there, it is offered without regard to that possibility. Should you find yourself alarmed by my post, you may privately mail me to protest or you may alert the principal's office. x:-)
  • That may well be. However with any Certification of Health form I have received from a doctor they have filled out #4. which gives the reader enough information to figure out what the patient was being treated for. In this case, the ee is stating that the absence was not FMLA qualifying as she had the flu (but was seen by a doctor). If this IS FMLA her job would be protected. If it was NOT, she probably will be at a minimum disciplined due to excessive absenteeism.
  • I'm really confused. If the EE has been steadfastly maintaining that this is NOT an FMLA event, why are you so concerned that her job may be protected? From your post, it looks like you want to designate her absence as FMLA.....yes, or no? You sent her the paperwork, and you're demanding that she submit the DOL certificate....right?!?! Well, if you do all of that, and you designate her absence as FMLA (which you could do anyway without the certification) then she WILL enjoy a measure of protection because any disciplinary action you take could be seen as retaliation.
  • Crout - No we do NOT want her absence certified as FMLA as we want to be able to write her up. HOWEVER, without that proof from her physician we are cautious to discipline or terminate her in the event she then claims FMLA.
  • In
    >this case, the ee is stating that the absence
    >was not FMLA qualifying as she had the flu (but
    >was seen by a doctor).

    Is this ee an expert on FMLA? No, she's not. But if you fire her she will become an expert. Your safest route is to tell her if her absences are not excused, she will be suspended pending termination, or whatever your policy is. Then offer her FMLA papers and once you get them back you have the choice to accept them or not. Any other way, I believe you are playing with fire. I hope you don't get burned. Good luck.




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