Doc's note is unclear

HRQ · July 2003

A pregnant employee completed her FMLA paperwork and she wishes to begin her Leave prior to the birth of the baby. Doc's note says "Jolene wishes to start her maternity leave on 7/7/03. No medical indication. Is able to return 6 wks after date of delivery."

What does "No medical indication" mean? That the doctor doesn't see a medical need for the Leave to begin early and is including the date simply because the employee requested Leave to begin that date?

On the STD application, a different physician wrote that the employee is advised to cease work on 7/29/03.

Which date do we go by? Staffing-wise, I think we are fine whether she leaves on the 7th or the 29th. She's a long-term and valued employee.

sonny · July 2003

That the doctor doesn't see a medical need for the Leave to begin early and is including the date simply because the employee requested Leave to begin that date?

Yes

LindaS · July 2003

If you can allow her to leave early, go ahead and do it but begin her FMLA clock ticking with the first day she is off work. As for STD benefits, chances are the insurance company will not begin paying her until one of two things happen: 1) She receives different medical information stating there is a medical need for her to be off early or 2) She has the child. If the latter is the case, make sure the employee is instructed to notify you when the child is born so it can trigger the STD benefits.

watrsflo · July 2003

Since there are no "medical indications" (which presumably means there is no medical basis) to stop working, there is no "serious health condition". In which case, I wouldn't start her FMLA until the same date as the insurance physician certified the need.

lorrie · July 2003

It is nice if your company is able to accommodate the earlier date, and can be consistent with other employees with similar requests, but I would not consider the earlier date as FMLA qualified leave without a dr note indicating that it is medically necessary. The time prior to a)the doctor noting medical necessity or b) the baby's birth date, should fall under your regular attendance/ vacation policy.

It seems that doctors are usually willing to go along with the patient's needs and write it as medically necessary, eg: if the patient states that she gets too tired working all day long, or something like that. Otherwise, it sounds like she would just like some extra time. (Not that I can blame her for wanting that extra time, its just that if this time is extended to her to 'prepare her home for an important event' or whatever reason will be stated, then other employees might apply it to their own situations and like the same privilege.)

The STD benefits should begin on the date noted by the doctor (7-29) or the baby's birth date, whichever is earlier.

Don D · July 2003

Although I agree that technically you may be able to interpret the doctor's comment as meaning there's no qualifying serious health condition, I agree that erring on the other side and going ahead and starting the FMLA clock now will serve you better in the long run, as if she really wants to be at home with this pregnancy early, chances are she'll not be productive working for you. In any event, it's unlikely that a challenge or FMLA audit by a DOL investigator would find fault with your granting the maximum the law intended, earlier rather than later. Starting the clock will bring the greater rewards to her and to you.

Margaret Morford · July 2003

I have to disagree. She is not qualified for FMLA until it is medically necessary. Now, practically, I'd explain to her that while you'd like to start her leave on July 2nd to accomodate her, the FMLA laws will not allow it unless her doctor says it's medically necessary for her to be off beginning July 2nd. She would have to be pretty thick not to understand that she needs the doctor to find a medical reason that she should begin her leave as of July 2nd. I don't think you can begin the FMLA clock running antipiating that she will need it in the future. FMLA in this situation should be granted for her serious medical condition only. She has no child to bond with yet.

I'd love for one of the attorneys to weigh in on this.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

HRQ · July 2003

Thanks so much for all your help!

I discussed again with the employee's supervisor. If she feels she can staff appropriately with the employee out early, that she'd treat other similarly situated employees the same way, and the employee understands she'll likely not be compensated by STD for time off until the birth of the baby, we'll just start FMLA before the birth. Sounds like we'd be exceeding FMLA requirements, which wouldn't get us in any hot water.

I'm glad I have you guys!

POPEYE · July 2003

>I discussed again with the employee's supervisor. If she feels she
>can staff appropriately with the employee out early, that she'd treat
>other similarly situated employees the same way, and the employee
>understands she'll likely not be compensated by STD for time off until
>the birth of the baby, we'll just start FMLA before the birth. Sounds
>like we'd be exceeding FMLA requirements, which wouldn't get us in any
>hot water.
>
What will you do if you have another EE in a different department request the same consideration and the supervisor of that area says "No, I can't do without her right now. We have planned on her leaving in 4 weeks."

You will be setting a precedent that will have to be continued company-wide, not just by departments. I would tread carefully on this one.

HRQ · July 2003

So the safe thing to do is not allow her Leave until the doctor says it's medically necessary or the baby is born.

I did like the thought of exceeding requirements for a solid and valued employee. (My tendency is to find a way to say yes) x0:)

A precedent question: we have 16 locations all in one metro area. Does making an exeption at one location set the precedent for all locations? I guess so, but am looking for confirmation.

watrsflo · July 2003

I would say, Yes, very likely so, since you're one company. This would likely be seen as the company's policy.

mbeam · July 2003

If possible, would look to separate the two as agree with some of the other posters who have indicated this not to be a qualifying event. Can she take vacation time or an unpaid non-FMLA type of leave?

Don D · July 2003

Another wrinkle to the precedent dilemma posed by Popeye, is that you can certainly consider the 'ability of the company to allow the leave at this time due to circumstances' among the deciding factors. That factored in heavily apparently, as the supervisors said they could adjust and it would impose no hardship. If a seemingly similar situation arose in which the company, the supervisor or the product demand COULD NOT adjust, I don't think you would have a 'like situation'. Precedents only come into play when you have like situations.

Whatever · July 2003

However, the ee who is denied the extra leave might PERCEIVE that they are not being treated equally. Furthermore, when precedents are set, the result is usually known by all and not the thinking that went into it.

sonny · July 2003

I like mbeam's suggestion. In my ideal world, I would let her take vacation til the later date or birth of the baby.

watrsflo · July 2003

I support Sunny's summary -- (I'm glad I don't have a lisp).

HRQ · July 2003

We've decided to place the employee on vacation until the baby is born. The employee understands she will need to use PTO if she wants to be compensated for the time and that STD will likely not pay for the time off prior to delivery of the baby unless the doc decides the time off prior to delivery becomes medically necessary.

Staffing worked out, as our enrollment (childcare) is down in the summer and hours would have been cut anyway. Allowing early time off for this individual resulted in others not taking as much as a cut in hours at they would have taken had we forced her to continue working.

Apparently I am inclined toward run-on sentences today. Sorry 'bout that.

sonny · July 2003

Sounds like a happy ending to me.. but now it's bugging me. .what do you call it when you have all those sssssss (sonny's summary..) or any letter for that matter?

watrsflo · July 2003

[font size="1" color="#FF0000"]LAST EDITED ON 07-07-03 AT 01:38PM (CST)[/font][p][font size="1" color="#FF0000"]LAST EDITED ON 07-03-03 AT 03:52 PM (CST)[/font]

A snake? x}> No!

Hmmm, if they were zzz's it would be 'a sleep'?? xI-) No!!

How 'bout -- alliteration!! xclap

Human Resources Manager · July 2003

When you have a phrase where two or more words begin with the same consonant sound it is called alliteration. (Sorry, I had a simpler answer, but then I checked the dictionary for spelling, and changed my answer to be more precise).

sonny · July 2003

Thanks, could not think of it!

Doc's note is unclear

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