Botched Leave
Leslie
1,729 Posts
Okay, the dept let the employee go out 07/26 for an elective surgical procedure - breast augmentation. I know nothing about it, and no one in the dept will fess up to who said she could go. The initial doctor's note said she needed three weeks. She comes back to work yesterday, and a shift manager lets her work based on the original note's return time frame. After three hours she says she still hurts, so they let her off. Calls today says she's back off work. I call doc who faxes note saying she can't return until further notice, expected time frame through 08/22. My question...do elective surgeries qualify under FMLA?
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Had the exact same surgery, with complications happen here and our attorney advised us that the complications were covered under FMLA. Employee didn't come close to using 12 weeks so not sure if we would have counted the time off for the surgery under FMLA or not.
"Life is a tragedy when seen in close-up, but a comedy in long-shot."
Charlie Chaplin
PORK
(edit) And, Mushroom, it is indeed the employer's responsibility to determine whether or not to qualify an event as FMLA. The doctor only completes the paperwork that allows you to make that determination. Doctors do not administer FMLA, employers do.
"Life is a tragedy when seen in close-up, but a comedy in long-shot."
Charlie Chaplin
So I interpret this condition as FMLA qualifying.
I spoke with Wage & Hour regarding who determines FMLA eligibility--the doctor or the employer. The answer I received was that if the doctor completes the medical cert form, it is pretty much FMLA. I do not see how the employer can determine someone's condition is or is not a "serious health condition" by reading a few words on the Med Cert. Therefore, how can our knowledge of the condition be greater than the doctor's that would make us qualified to decide who has a serious health condition and who does not. (Let's forget about those doctor's who sign anything to cover themselves or the employees whom we know are faking it). If someone can shed new light on this debate, I would surely welcome it! I still don't know how to approach this. Thanks!
The wage and hour folks are usually pretty good with helping we employers with issues in wage and hour, but their input into an FMLA issue is wrongly considered, unless they are reading from your policy and procedures manual. But, I would hope that you can read your own words better than they can.
PORK
Thanks for your clarification as well. Your explanation defines my approach. My interpretation was just too literal and I could not see the trees for the forest!
It's absurd that the Wage & Hour telephone answerer implied that 'once the doctor fills out the form you PRETTY MUCH have to allow it'. What the hell kind of answer is that. Useless, that's what kind. What you have there is a Thursday morning interpretation from a clerk with two cups of coffee and three cigarettes under her belt.
The medical certification is often required of a doctor. The employer makes the final determination. This does not imply that the employer is involving itself in medical analysis or the reading of symptoms and diagnoses. Simply that the employer is responsible for administering the program.
An example, one of many, of a situation where a completed medical certification and recommendation is absolutely turned down follows: Employee presents medical certification with everything checked off appropriately, much more information than the employer is entitled to or asks for, recommends the employee be allowed intermittent, monthly, two to four days leave due to wife's ongoing medical condition and certifies that the time frame for that condition is years and years.
Fine, however, upon review and scrutiny and several interviews with employee it is found that the need for the employee to attend his wife is secondary to the fact that she has some sort of monthly female outburst and NEEDS HIM AT HOME TO BABYSIT THE FOUR CHILDREN UNDER SIX YEARS OF AGE. Not qualified, rejected, denied. There are all sorts of situations in which we should and do deny FMLA when we have medical certifications.
"Life is a tragedy when seen in close-up, but a comedy in long-shot."
Charlie Chaplin
Thanks for your response. That's how I deal with FMLA, so it's nice to have confirmation of the interpretation. "I Can See Clearly Now, the Fog is Gone"!!!
"Life is a tragedy when seen in close-up, but a comedy in long-shot."
Charlie Chaplin
I'm comfortable with my process because our employment law attorney agrees with it and because I have never had any issues -- no lawsuits, no complaints. That includes my time administering the Act for Teamsters Local XXXX.
How, pray tell, have I misinterpreted the DOL form? What is not clear about "describe the medical facts . . . how (do) the medical facts meet the criteria . . ."? A doctor's note saying the employee needs to be off work is not a medical fact. Don, earlier you correctly stated, "it is indeed the employer's responsibility to determine whether or not to qualify an event as FMLA." If I make a determination just because the doctor says so haven't I abdicated my responsibility? I'm not afraid to have knowledge of an ee's medical condition. I trust myself to keep it confidential.
For elective stuff, even though I don't have to, I allow it, but insist on scheduling the leave at an optimal time for the department.