In an earlier article an attorney chastised me that I should never advise management to deny a request for Family Medical Leave (FMLA). For the vast majority of the requests I agree with my learned colleague. However, there are times when a request for FMLA falls short under the statute and regulations where the medical documentation does not support the request.
The only way an employer can verify or challenge the use of FMLA is through the medical certification process. If an employee requests leave under FMLA they do not have to provide the medical justification unless the employer specifically requests it.
The employer should always send the employee a written notice for the medical documentation within five (5) days of receiving a FMLA request. The employee then has 15 days in which to comply with management’s request, but this timeline may be soft if there are extenuating circumstances where the employee may need some additional time.
Employees must provide “timely, complete, and sufficient” medical information so that the employer has a clear understanding that the request for FMLA leave satisfies the requirements under the Act, and that the employee indeed has a serious health condition. Supervisors and managers are strongly urged to use the Department of Labor’s WH-380-F form, which may be downloaded at http://www.dol.gov/whd/forms/WH-380-F.pdf. This form is known to the medical community and its use often avoids any misunderstandings, or generates a vague and incomplete response. The use of this form is not mandated, but again its use is highly recommended.
What happens if the employee returns the form that is incomplete or vague? A medical statement that a person is under this physician’s medical care without providing the relevant medical facts is not sufficient, and management does not have to accept it. You can for the moment deny the FMLA leave to that person.
A certification is considered incomplete if one or more of the sections on the form are left blank or the information provided is ambiguous and unclear. The law and its implementing regulations require that you notify the employee that the medical certification is deficient, and the possible consequences if adequate documentation is not furnished. The employee must be given seven (7) calendar days to clear up any deficiencies, and the employee must be given clear guidance as to what deficiencies are in question.
Remember, the employee’s “direct supervisor” is prohibited from contacting the employee’s health care provider directly. The FMLA regulations only reserve this right to another “health care provider”, e.g., a public health physician, an HR professional, or a leave administrator acting on behalf of management. Moreover, employers are not allowed to ask medical questions that go beyond what is required by the WH-380-F form.
It is not uncommon for a doctor to hastily complete the WH-380-F form without taking into consideration all of the questions and the relevant medical facts necessary to support the request for FMLA leave. This provision is one among some of the more controversial provisions in the regulations causing discord between the employer and the employee.
Laws such as FMLA have often been cited by industry as to why so many American jobs have been sent offshore. The medical community also references it as one among the growing list of government regulations that are raising the cost of a medical practice and taking the doctor away from why he/she became a doctor in the first place – to provide medical care to their patients.
In a very recent private sector 2nd Circuit Court decision (Porter v. Donahoe, No. 10-1174, June 5, 2012), Mr. Porter lost his case because the paperwork he submitted in July 2006 was incomplete. It was the same paperwork that he submitted in March 2006 (which didn’t get him the FMLA leave requested).
More importantly, Mr. Porter failed to answer several of the questions on the form. He did not indicate, for example, the length of time he would need the leave to assist his mother or the number of days that he would need to be absent from work. He did not dispute that he left some answers blank or that he wrote “unknown at this time” in response to other questions. He was given an opportunity to correct the paperwork, but he did not do so. When his leave was denied, he sued, claiming that his employer was interfering with his rights under FMLA.
The use of the medical certification process is the biggest tool management has in combating potential abuse under FMLA. If management is going to err, it should do so on the side of accepting an employee’s claim of a serious health condition, but management must obtain medical documentation for each and every presumed illness.
It is important that your agency’s leave policies require a doctor’s certification for all absences of three days or more. What is equally important is that this policy be enforced all of the time to avoid a disparate treatment claim.
It is important as well that the medical documentation is closely examined to ensure that there is sufficient information to substantiate the FMLA request. If it is deficient, then allow the employee time to correct a deficiency.
Another weapon to fight abuse is management’s right to seek a second or third opinion if the circumstances being presented are suspicious or if there is legitimate doubt as to the validity of the medical certification. If the employer requires a person to obtain a second or third independent evaluation, the cost of these examinations are to be paid by management. A third opinion should only be pursued if the second opinion is at variance to the original, and the third opinion should be used as a tiebreaker. The third opinion is binding. Because of the expense, actual as well as the opportunity cost of time, a second or third opinion is only advised in reasonably extreme circumstances.
There are several other options management may use to avoid FMLA abuse. Monitor the schedule of absences closely to determine whether a pattern of leave develops around weekends or holidays. Such a pattern might suggest a change in the employee’s health condition enabling management to request a recertification. Requesting recertification as often as the law allows is a strong deterrent to misbehavior.
Taking an adverse personnel action because of an employee’s use of FMLA will almost guarantee the employer will be settling for reinstatement, back pay and attorney fees. However, the courts also do not look kindly on employee abuse.
In Tillman v Ohio Bell Telephone (No. 3:09-CV-2351, ND OH, 2011), Mr Tillman was fired for violating the companies leave policies. Mr. Tillman suffered from a chronic back problem, and his doctor certified intermittent leave when his back pain flared up.
Over a few months Mr. Tillman’s intermittent leave for his back condition occurred preponderantly with other days off. Ohio Bell initiated an investigation, and found Mr. Tillman engaging in physical activity that was in contravention to his medical certification and claimed ailment. He was fired for his dishonesty and violating the company’s leave rules. As expected, Mr. Tillman sued the company for interfering with his FMLA leave rights. The Ohio court agreed with the employer and sustained his removal.
As I have stated in earlier articles on FMLA, this is a complicated area and one that demands thoughtful and very carefully planned management policy and actions to stay out of trouble.
While FMLA is an entitlement to employees whose serious health condition(s) requires them to take time off consecutively or intermittently, it is not a blank check, and management also has rights under the statute to counterbalance anyone who wishes to attempt to abuse the system. This will not guarantee management will be free from challenge, but a methodical and well planned approach will generally allow an employer to prevail when someone wishes to challenge management’s right to control the workplace.
