FMLA confusion
Irie
482 Posts
I'm confused and need some help please.
An employee was absent Monday, Tuesday, Wednesday, and Thursday (2/19, 20, 21, and 22). On Thursday (2/22)I mailed FMLA papers to her. She returned to work on Friday (2/23). I informed her upon her return that I had mailed the FMLA certification to her and asked if she had been to the doctor. She stated she had been but could have returned to work on Wednesday but chose not to because her husband was ill so she stayed home with him on Thursday. They both had flu/bronchial problems.
The following Tuesday (2/27) she brought me a doctor's note dated 2/26. The doctor's note stated she was under his care from Monday, 2/19 to Thursday, 2/22 and could return to work on Friday, 2/23. The employee stated that the doctor had given her a prescription for antibiotics.
The employee has not returned the FMLA certification which is due tomorrow. However, I do have the doctor's note and the information that she received a prescription. My question is: do I have enough information to apply FMLA or does this not even qualify as FMLA? Is an absence plus treatment plus a prescription with no subsequent treatment FMLA?
We have a point-based attendance policy so I don't want to assess points if FMLA would apply. Thanks for your help.
An employee was absent Monday, Tuesday, Wednesday, and Thursday (2/19, 20, 21, and 22). On Thursday (2/22)I mailed FMLA papers to her. She returned to work on Friday (2/23). I informed her upon her return that I had mailed the FMLA certification to her and asked if she had been to the doctor. She stated she had been but could have returned to work on Wednesday but chose not to because her husband was ill so she stayed home with him on Thursday. They both had flu/bronchial problems.
The following Tuesday (2/27) she brought me a doctor's note dated 2/26. The doctor's note stated she was under his care from Monday, 2/19 to Thursday, 2/22 and could return to work on Friday, 2/23. The employee stated that the doctor had given her a prescription for antibiotics.
The employee has not returned the FMLA certification which is due tomorrow. However, I do have the doctor's note and the information that she received a prescription. My question is: do I have enough information to apply FMLA or does this not even qualify as FMLA? Is an absence plus treatment plus a prescription with no subsequent treatment FMLA?
We have a point-based attendance policy so I don't want to assess points if FMLA would apply. Thanks for your help.
Comments
From 825.114 (c)
Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach,
minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of
conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave.
"Any period of incapacity for three consecutive calendar days or longer that also involves treatment by a health care provider and a regimen of continuing treatment under his or her supervision an FMLA event"
You said the doctor said she was under his care, and thus it meets the FMLA definition.
I understand your comment and frustration about her not returning the form, but the courts have long ago ruled that a failure to bring in the completed forms is not an employer defense. If you have adequate information to make a decision, then an unreturned form cannot be a defense.
We don't know about any complications arising, at least none have been mentionded so far. But in fairness, the forms should not even mention the diagnosis - we need to ordinarily make these decisions based on the Dr's certification. Since it is absent, it suggests the issue has not risen to that level.
We now know it is flu (even if we should not) and that bell cannot be un-rung at this point. As usual, this is an opinion and must always be considered as such. Not a black and white declaration that I am right and there is no room for other viewpoints.
You can still require the paperwork to determine if there is a potential for follow-up visits but at this point, the time she has missed is FMLA.
Secondly, the time caring for hubby does not count.
I think you are getting bogged down with the diagnosis. Take a look at the information you have, more than three days absence (certified by the doctor), treatment by a health care provider and continuing treatment.
You yourself stated that we do not need the diagnosis and even though we have it, it does not change the facts as outlined above.
In addition, while the EE may not have turned in the EXACT forms needed, there is enough information to make the FMLA designation. If this is denied as FMLA based on either knowing the diagnosis or not having the exact paperwork completed, I do not think that defense would hold up if there were a complaint filed.
"While ordinarily the flu is not a serious health condition, the employee's flu was sufficiently serious in this case to be protected by the FMLA. The regulations define a serious health condition as one that incapacitates the employee (prevents her from working) for "more than three consecutive calendar days" and involves "treatment two or more times by a health care provider." Because the employee saw her doctor twice and he excused her from work for 4 days, she met the definition of a serious health condition"(250 F.3d 820).
In addition under the DOL's opinion letter #87 December 12, 1996 also offered their ruling in the matter:
“If an individual with the flu is incapacitated for more than 3 consecutive calendar days and receives continuing treatment, e.g., a visit to a healthcare provider followed by a regimen of care such as prescription drugs, the individual has a qualifying ‘serious health condition’ for purposes of FMLA.”
This should be allowed as FMLA or you will be placing your organization at risk.
I get all of that.
Look at the facts we were given. The EE herself indicated she was ready to come back to work on Wednesday, after a two day absence.
We all complain so much about abuse of the system, and many of us are aware that quite a few medical providers will cut their patients a very large break when it comes to writing notes for their employer. I am suggesting that this has happened, which MAY be one of the reasons the DOL paperwork has not been returned.
So the EE, by her own admission, stretched her time off from two days to four, to take care of her husband. Perhaps his condition (the extra days) may have qualified, but that is a whole nuther kettle of fish.
As to my discussion about our knowing of the diagnosis, I was presenting that perspective as the other side of the coin. Had the EE been smarter about all of this, and only provided the DOL paperwork with the Dr.s signature and none of the diagnostic information, the HR department would have had to approve.
I don't like to stretch FML - it is already difficult to administer and has all sorts of squishy areas that can put the ER behind the 8 ball with little room to maneuver.
But wait--no, if that hangnail gets infected and I have to go to the doctor and can't work for more than three consecutive days because of the infection and the doctor gives me antibiotics, then I too can qualify for FMLA. So then a hangnail could be a serious health condition. hmmm...
(Written in total frustration with this entitlement.)
Amen to that!
No offense, just remember that the only medical assessment that matters here is the physician’s, and did he/she certify that this employee was out for the reason and period defined under FMLA that would make it FMLA…yes. If you think abuse is occurring the FMLA gives you the option of a 2nd opinion, something I have used, but frankly not very effective. It really makes no difference how we feel. The courts will rule on the law and that's it. I have been in HR Management for 27 years and the FMLA is the most confusing piece of legislation I have dealt with. Nevertheless, like it or not this case meets the requirements of the FMLA law and that's all that matters.