Human Resources News & Insights

5 FMLA questions almost all managers can’t answer

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.

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  • M Kracht

    Regarding question 5, how do I know if he is ADA-protected?

  • Bonnie Bogart

    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?

  • B Bahr

    These articles are some of the most informative I have read on Intermittent leave- a major issue with our company. Kep them coming.

  • http://mkmmachine.com Marketta

    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.

  • Sonia Duffie

    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?

  • Pat S

    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.

  • John

    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.

  • John

    Bonnie, one thing though, you meant 46 days and not hours. . right?

  • John

    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?
    ______________________________________________________________

    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.

  • Jackie T – SPHR

    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.

  • Karen

    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?

  • Mariah

    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?

  • John

    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.

  • David

    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?

  • John

    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.)

  • Jackie T – SPHR

    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.

  • Judy Nelson

    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!

  • http://starrydiana@aol.com dan carstetter

    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

  • Where would one find the qualifications of ADA?

    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.

  • Pingback: Want to learn more about FMLA? | HRLegalNews.com | Up-to-the-minute cases and law impacting HR

  • dave h

    employee was written up for no call no show. he ask HR dept if FMLA was approved, does the corrective action “go away”. how do i respond to this? do i respond to this?

  • John

    Dave you have several different issues. First as of January 16, 2009 FML absences (call ins) can be handled the same way any other known absence would be. If a person was sick and you had a requirement to cal by a certain time then FML qualifying absences can be handled the same way.

    However if the person was a no show, was it because the person could not call in? When did the ee call? Were you able to foresee that the ee would take time off? Would the absence have been qualified under FML if the ee did call in? Did the ee express something that would have indicated that he/she was sick or had a sick family member prior to the absence? Does the ee regularly miss work time or is repeatedly late? (May give an indication of tryth or just trying to cover)

    Answer these questions and it should give you some idea of how to respond. If the absence would have been an FML absence then be careful of any corrective action that would deny approved FML. However an action may still be taken for a violation of your absence policy.

    Network a little with some HR person that you may know locally. Hope this helps.

  • dave

    employee was approved for STD, he has a right to file an appeal to the corrective action within 10 working days. is it my respsonsability to tell him this? it is in the employee handbook we provided him up hiring.

  • Judy Nelson

    I’m sorry but if the employee was approved for STD then how can he be considred a no call no show? I was just recently out on short term disability where I was admitted unexpectedly to the hospital. After notifying my boss I was not required to call every day (nor did I call every day) but did keep them updated on my condition etc until I returned to work. If the employee has the right to file an appeal then I think that certainly you should inform him of this even though it is in the handbook. Looking to hear what others say.

  • John

    I agree with Judy. If std was approved why is there a corrective action? After an absence is approved as an FML qualifying event the employer then cannot set up an intrusion, such as a call in every day, to having the FML time off. I’m certain there is more to this story. Give us more details please. We want to understand.

  • dave

    The STD was approved after the corrective action, but was backed up 2 weeks to cover time employee had already been off on intermittently

  • dave

    sorry about the interuption. His story is, he called in to say he was coming to work, after calling, he took his pain medication and was unable to come. He did not call to inform manager he was actually not coming. He did this three times in one week. He has a torn rotator cuff and is awaiting surgery. He has been on FMLA in the past with this same shoulder. HELP!!!

  • John

    Dave: Do you have an absence policy that clearly spells out what is required of an employee? Just as important can you certify that the ee is familiar with the policy? If yes then you may have a violation of your absence policy even though the ee qualifies for FML. Corrective action can be taken for the violation of your policy but it cannot involve the ee’s rights under FML.

    Second. Does the ee have the requisite time let for an FML absence since last year? Have you required the ee to have the proper medical certification sent to you from the medical provider? If the ee qualifies for FML time under how your place of business calculates the FML year; if the ee has medical certification of an injury that will prevent the ee from performing the essential job functions; if the medication prevents the ee from performing the essential job functions; if the ee has time left from the 12 workweeks from last year, then the ee qualifies under FMLA.

    You as the employer have the right and responsibility to ASSIGN him/her FML time. It is not required that the ee request FML time. You may require that the ee provide progress reports every thirty days during the absence. At that point the absence policy would not be a continuing issue while the ee is on FML.

    Also be advised that the severity of the shoulder injury may also turn into an ADA AA issue. Seek the advice of your company attorney or another local trusted HR partner. I’m certain they will tell you pretty much what you have heard here. I hope this has been helpful.

  • dave

    So is guess I screwed up. I should have assigned him FML time for the days missed instead of corrective action against him. He is a good employee. He is just injured right now and I failed to support him.

  • dave

    I forgot to thank you for the help!! THANK YOU

  • John

    Your are welcome!

  • Ann

    If employee has a non work related injury and has already been approved for FML to include therapy and or doctors appointments is it legal for an employer to arrange a medical examination with a third party doctor?

  • John

    Ann

    Yes under certain conditions. The question will become why is there a need for another med-cert? Could be several reasons. If an ee has a change in circumstances is one reason for a med recert. Example. If the med-cert you have states that the condition of the ee will necessitate them being absent four times and then they are absent six times, that is a change in circumstance and you may require the ee to have another med-cert completed to verify the need medically for the change. They must follow through on the re-certification at cost to them. (29 CFR 825.308b) The re-cert can only cover the same condition that the ee was previously certified for leave and the employer has to accept the conditions of the re-cert.

    A second opinion is a bit different. Let’s say you have reason to doubt the validity of the medical certification the ee has submitted. This is not a recert by the way. But if you have reason to doubt the original med-cert you may chose a healthcare provider, not employed by your company, for a second and yet a third opinion at the employer’s expense. (29CFR 825.307b) You are required to accept the third opinion. (You may accept the second but you cannot go beyond three opinions.)

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