FMLA - "I'll Show You My Scar"
Public Sector Texas
17 Posts
A longtime employee with plenty of sick leave has just returned from several weeks off. Based on him telling us before the fact that he was having surgery, we did a preliminary FML designation. He has returned with a full release from the physician, and a note on the surgeon's letterhead indicating the dates he was under treatment. Our policy is to send a certification form for the doctor to fill out indicating the type of serious health condition (from categories 1-6, hospitalization, ongoing treatment, etc.), estimated duration, whether there is a need for intermittent leave. He is refusing to return this, indicating that his physician will charge him $25 to fill out the form. "I will come and show you my scar to prove I had surgery," is his response.
We know the FMLA allows us to require that a certification be completed. But there is other language in the regulations indicating that we could also accept information from the employee:
"Upon receipt of the requisite information from the employee or of the medical certification
which confirms the leave is for an FMLA reason, the preliminary designation becomes final."
29 CFR 825.208
Our inclination is to accept the doctor's treatment note and request written confirmation from the employee that he was off due to surgery (no, we don't want to see the scar). But we fear that if word of this gets around among employees, everyone will refuse to have the certification completed. Should we hold the line and reject this as FML without a doctor's certification?
BTW, we are hearing more frequently from employees that their medical providers are charging to fill out forms.
We know the FMLA allows us to require that a certification be completed. But there is other language in the regulations indicating that we could also accept information from the employee:
"Upon receipt of the requisite information from the employee or of the medical certification
which confirms the leave is for an FMLA reason, the preliminary designation becomes final."
29 CFR 825.208
Our inclination is to accept the doctor's treatment note and request written confirmation from the employee that he was off due to surgery (no, we don't want to see the scar). But we fear that if word of this gets around among employees, everyone will refuse to have the certification completed. Should we hold the line and reject this as FML without a doctor's certification?
BTW, we are hearing more frequently from employees that their medical providers are charging to fill out forms.
Comments
As far as the $25 fee is concerned, that is between the employee and the doctor. After all, you did not select this doctor for them. The employee choose him/her.
I remember hearing once (I think on this forum) where an HR person made a list of all the doctors who charged a fee for filling out paperwork and put it up on the employee bulletin board. The physicians soon called and wanted their names off the list. As soon as they agreed to stop charging this fee, their names came off. I understand that thier time is valuable, but they don't charge a fee when it comes to completing forms so they can collect fees for their services. They can do this for free too.
Just my opinion.
Nae
If the EE does not want to pay, they can take the discipline hit. Put it in context.
Depending on your org, you may need to alert supv or CEO that to maintain legal protection you may have begin progressive discipline until EE complies with policy.
As an alternative, there may be a way to simplify the form, if what your workers say about being charged is in fact true. However, do not do it in the middle of this case.
The reg you quoted indicates that you only need "requisite information from the employee ... which confirms the leave is for an FMLA reason." He gave you verbal information and a doctor's note (and a scar!), and you don't think he's lying. He has satisfied his obligation under the FMLA as far as his past absence.
Now if he needs intermittent leave in the future, you certainly can demand additional proof.
As for other employees, most requests aren't as clear-cut as a scar, so you could very well be justified in requiring the form for them.
Good luck!
James Sokolowski
HRhero.com
I love the "clear-cut as a scar" comment, being especially fond of bad puns.
a) An employer may require that an employee's leave to care for the employee's seriously-ill spouse, son, daughter, or parent, or due to the
employee's own serious health condition that makes the employee unable to perform one or more of the essential functions of the employee's
position, be supported by a certification issued by the health care provider of the employee or the employee's ill family member.
There are other factors when you do require the certification, such as notifying the EE in writing of the consequences of failure to provide the certificate.
The language in paragraph a clearly states the ER may REQUIRE the certificate. Without it, you put yourself in the position of diagnosing "serious medical condition" and that is a formula for disaster.
I was wondering why more people weren't agreeing with me. Maybe it's because I was wrong.
I checked with benefits attorney Anne Williams, and she thinks that you and the others are right - an employer can require a certification even when the ee obviously qualifies for FMLA. My bad.
James Sokolowski
HRhero.com
Thank you for following up with Anne & confirming our thoughts. Any of us could miss an interpretation with all we have to remember & the changes that occur. I scanned Anne’s special report on FMLA leave (so you don’t have to shamelessly plug it) x;) which seems to say that but your confirmation helps.
As for the doctor charging the employee, you will want to check you state's statutes. In my state, the employer is required to pay for any medical information or doctor's visit that it (the employer) requires.