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.