5 FMLA questions almost all managers can’t answer
August 26, 2008 by Sam NarisiPosted in: Best Practices, FMLA, Special Report
Of all the issues HR deals with, FMLA leave probably causes the most headaches. Here’s some help with five common — and confusing — medical leave scenarios.
1. An employee needs follow-up treatments after surgery and asks to take intermittent FMLA — every other Friday afternoon. Do we need to let her leave early?
For the most part, the answer’s yes, says Linda Hollinshead, an attorney with the law firm Wolf, Block, Schorr and Solis-Cohen. But you do have some options.
After you get her medical certification, you can ask for a second opinion to make sure she really needs leave. Then, ask if there’s any reason she needs to get treated on Fridays — and have her give you verification from her doctor.
If there’s no medical reason to take leave at those times, you’re allowed to ask her to schedule the treatments after work or on other days.
2. We have an employee on intermittent FMLA. At first, his absences were sporadic, but now he takes off frequently, always on Monday or Friday. What can we do?
Get recertification. Employers are allowed to ask employees on intermittent FMLA to get certified every 30 days — or at any time, if circumstances change, or the company has reason to think something fishy is going on.
According to a Department of Labor Opinion Letter (available here), a pattern of Monday/Friday absences is enough to warrant recertification.
3. To curb abuse, we have managers or HR reps call employees on leave to make sure they aren’t trying to use FMLA as a substitute for vacation time. Is that legal?
Yes, says Hollinshead. That can be an effective way to prevent abuse, and courts have found policies like that to be reasonable.
In fact, some companies have even gone as far as hiring a private investigator to watch an employee suspected of FMLA abuse and were able to win in court.
4. One of our employees has a serious medical condition. We’ve offered him leave, but he refuses to take it. What do we do now?
That depends on the nature of his condition. If he qualifies for FMLA, and the condition prevents him from doing his job safely — or he presents a risk to himself or co-workers — you can make him take leave.
Otherwise, forcing leave could cause problems. In one recent case, a company lost in court after putting an employee on leave against his will. The court ruled his condition wasn’t serious enough to qualify for FMLA and the employee was still able to perform his job safely (Cite: Wysong v. Dow Chemical Co.).
If you’re in a situation where you don’t need to put the employee on FMLA, make sure you document the fact that leave was offered and denied — that’ll come in handy if the employee later claims he was denied FMLA.
5. What happens when an employee comes back from leave and can’t perform his job?
There are a few questions you need to answer in that situation:
- Is he ADA-protected? Some conditions that qualify for FMLA leave are also protected by the Americans with Disabilities Act. If that’s the case, you may need to accommodate the employee’s disability.
- Can he perform the job’s essential functions? In a recent decision, a court ruled the company couldn’t deny reinstatement based on an inability to perform nonessential job functions (Cite: Carstetter v. Adams County Transit Authority).
But as the law states, if he’s not protected by the ADA and can’t perform an essential job function, you have no obligation to reinstate him.
Tags: ADA, FMLA, intermittent leave, medical certification
August 27th, 2008 at 12:06 pm
Regarding question 5, how do I know if he is ADA-protected?
August 27th, 2008 at 12:48 pm
We have an employee that requested FMLA to tend to his wife who has cancer. He has missed 46 hours of work and we have repeadly requested the FMLA documentation and medcert but have yet to receive anything. It has been since March and we are looking at terminating him due to attendance policy. All he would need to do is submit the FMLA documentation to protect his job. Are we on safe ground?
August 27th, 2008 at 1:02 pm
These articles are some of the most informative I have read on Intermittent leave- a major issue with our company. Kep them coming.
August 27th, 2008 at 1:28 pm
Bonnie Do you have proof that you sent him the FMLA certification of health care provider, i.e. certified receipt? If so, he has 15 days to provide you with the documentation. I believe that after that 15 days he would fall under an attendance control policy that is uniformly enforced.
August 27th, 2008 at 1:29 pm
What about an employee who is on weakly indemnity and FMLA papers are sent to him/her but he/she doesn’t respond or process FMLA papers with his/her doctor? Can we still put them under FMLA leave (WI being paid) even though they are not accepting the offer?
August 27th, 2008 at 1:36 pm
If the proposed changes to the ADA pass, you can pretty much assume every employee would be ADA-protected. OK, maybe not every employee but that’s what it will seem like.
August 27th, 2008 at 1:36 pm
Bonnie: Yes, for the most part. An employee that has not returned medical certification papers without good cause can be treated as not having authorized FML leave. Your absence policy would come into effect. Be certain you can prove adequate notice was given to the employee more then one time and that adequate time was given for the medcert to be returned. If so use your attendance policy like you would for any other absence.
August 27th, 2008 at 1:37 pm
Bonnie, one thing though, you meant 46 days and not hours. . right?
August 27th, 2008 at 2:06 pm
Sonia: What about an employee who is on weakly indemnity and FMLA papers are sent to him/her but he/she doesn’t respond or process FMLA papers with his/her doctor? Can we still put them under FMLA leave (WI being paid) even though they are not accepting the offer?
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Speaking only to placing an ee on FML, how is the leave time under the indemnity defined? If it has no defined effect in your policy that would effect a qualifying event under FML then the ee has no choice. FML placement for a serious health comdition preventing a person from performing their essential job duties is assigned by the employer and not a matter of acceptance by the ee.
August 27th, 2008 at 2:07 pm
The ADA is complex and you would need to review but to simplify - if the individual has an ongoing disability (not a temporary issue like a broken leg) that impaires a major life function (eating, seeing, hearing, breathing, walking, working, etc, etc), they may be covered. Lots of research to determine past rulings of “disability” would be appropriate, or of course, consulting a company attorney for advise.
August 27th, 2008 at 3:00 pm
What if have an employee that qualifies for intermittent leave and right now not ADA but works a shift that they are usally the only one there answering the phones and getting a fill in at the last minute because the person on FLMA is not feeling well is very hard to do and would shut down a major function of the business. Can you force them to take different shift that has more coverage and it wouldn’t be a major inconvenience to the business or their customers?
August 27th, 2008 at 3:19 pm
It is my understanding that Employers are not to ask employees about when they will return from leave if out on FML. However, I’ve heard more and more recently regarding calling in on associates and requiring them to be home when using FML. I guess my question is three fold in that: 1. If you call in on employees out on FML, what do you ask? 2. If an employee has nothing but a cell phone, how do you know they are actually at home, and 3. How do courts view the requirement of employees on FML, or termination if they are caught ‘out and about’ on FML designated day?
August 28th, 2008 at 8:26 am
Karen- Yes you can. A business does not have to suffer while an employee is taking a qualified FML absence. You can temporarily assign them a different shift or offer a reduced work schedule.
Secondly refer back to the health care certification that you had the employee’s doctor fill out. What are the specifics of “not feeling well” and how does the medcert recommend those “not feeling well” days to be handled? Intermittent leave is not a get out of work free card. Did the medcert say how long this was to last? If you are beyond that period, ex: the medcert says that for the next 60 days the patient will blah blah. . then ask for a recert requiring the specific condition including treatment and expectation of return to full duty.
August 28th, 2008 at 8:37 am
If you call an employee at home and they don’t answer, What next? After all they are supposedly to ill to work. So what do you do when they tell you they were to sick to answer the phone?
August 28th, 2008 at 8:40 am
Mariah, you can ask an employee out on FML when they expect to return. Obviously one cannot harass an employee. However the greater issue is that the expected return date should be included on the medcert that certified the absence as a FML qualifying event.
Your questions:
1.If you call in on employees out on FML, what do you ask?
Ask how they are. Express concern for them and if there is anything you could do to aid in their recovery.
2. If an employee has nothing but a cell phone, how do you know they are actually at home?
Frankly, you don’t know.
3. How do courts view the requirement of employees on FML, or termination if they are caught ‘out and about’ on FML designated day?
This is a bit tricky. ‘Out and about’ may fall within the medcert guidelines. The employee is not bound to the home so to speak. Also if the FML is associated with a WC injury and the employee works a second job, you may be libel to pay the employee for both the current assignment and any compensation that would have been missed from the other job due to the WC injury. So if the second job falls within the guidelines of the FML medcert you would be better letting the ee work it. (This is based on what happens in Virginia.)
August 28th, 2008 at 10:05 am
David, remember that “too ill to work” doesn’t mean that they are homebound or “bed bound” the reason for the absence might be something like a knee surgery that causes them to be required to use crutches, so they can’t step off an on a forklift 30 times a day, or a back injury where they can lift 10 lbs, but not 50 lbs, or they have daily physical therapy. This doesn’t mean that they couldn’t pick a child up from school, or go to the grocery store. We have to be reasonable that when an employee is injured or ill, that “life” doesn’t stop, though their ability to work full time for a short period of time might. FMLA also covers them for family members or an health condition like pregnancy (after birth) where they have to “take it easy” but are not disabled.
August 28th, 2008 at 10:53 am
At this time my agency is too small to be covered by the Federal FMLA law, however, my state (NJ) has just passed a paid Family Leave Insurance law - used for FMLA type items but funded and paid out like short term disability. The law takes effect in 2009. I’m very interested in how everyone handles these types of leaves - intermittent seems to be the one causing the most confusion. Keep the good comments coming!
September 5th, 2008 at 10:55 am
on #5 it should be noted that fmla was requested and denied.termination followed same week.in the papers to the courts,the employer outright lied to the courts and said there was never a request for fmla.during depositions,it was proven there was a request.this to me is purgery
September 10th, 2008 at 10:56 am
I would like to know where one would find the qualifiying criteria of being considered within the ADA as well as protected under FMLA. I was told I am protected under both. What legal agency governs these rules and regulations and where can I get them in writing?
Thank you.
November 4th, 2008 at 11:00 am
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