Human Resources News & Insights

Intermittent FMLA exceeds docs estimate: What not to do

Here’s the scenario: An employee’s absences far exceeded the amount of medical leave his doctor estimated he’d need on his FMLA certification forms. What happened next landed his employer in some pretty hot water.

James Hansen was an employee at Fincantieri Marine Group (FMG) who suffered from depression.

He provided FMG with a medical certification stating that his depression was a serious health condition and that he’d have episodic flare-ups that would periodically prevent him from working.

According to Hansen’s certification, his doctor estimated there would be around four flare-ups over a six-month period — and these flares would probably carry a duration of incapacity of two to five days per episode.

Problem was, Hansen ended up having 10 episodes in three months. Obviously, this was way out of line with his doc’s estimates, so FMG wanted to make sure everything was alright.

Cryptic note, cryptic response

FMG’s response, however, was what started a chain of events that led to Hansen’s FMLA interference and retaliation lawsuit. But we’ll get to that later.

Rather than contacting Hansen about the need for recertification, FMG went right to his doctor — via a TPA — and asked him simply to make the following confirmation: “[Jim]‘s 7/1 absence is out of his frequency and duration. Please confirm item#7.”

Not only was this request overly vague, it actually referred to the wrong question on Hansen’s medical certification.

And the doctor simply responded with: “7/6/11: Item#7 confirmed. P.”

Then, instead of seeking additional info, FMG denied Hansen’s request for FMLA leave and sent a letter informing Hansen his request was denied because his approved leave under his medical certification had already been used up.

Hansen then had a series of absences that were all denied because of the vague confirmation the company had received from his doctor.

Eventually Hansen was terminated for attendance reasons because, as FMG put it, even though Hansen had been granted FMLA leave, he exceeded the frequency his doctor certified.

As we mentioned earlier, Hansen then sued FMG for FMLA interference and retaliation.

No recertification request

A court ruled there was ample evidence for a jury to rule on Hansen’s FMLA claims and remanded the case to trial.

FMG’s argument that Hansen’s termination was justified because his absences “significantly exceeded the estimated frequency set forth in the certification” didn’t hold up in court.

The court said that just because Hansen had exceeded his doctor’s estimates, it didn’t mean that he wasn’t entitled to leave and could be terminated because of those absences.

Plus, he’d always provided notice of his need for leave whenever there was a flare-up of his condition, and there was absolutely no evidence that he was engaging in FMLA fraud or abuse, the court added.

Therefore, because Hansen already had a medical certification on file, FMG’s only recourse was to seek recertification.

But the company never sought recertification. It simply asked Hansen’s doctor’s to confirm the previous certification. So there was plenty of evidence that Hansen’s FMLA rights had been interfered with, the court said.

This case offers a number of important takeaways and lessons for employers.

One thing really stood out in this case: Although the FMLA gives firms the right to seek recertification, simply asking an employee’s doctor to confirm a previous certification, without any context, isn’t an effective tactic.

Here, the company should’ve provided the doctor with an entirely new certification form to complete.

And the company also should’ve sent Hansen a notice that recertification was required, instead of going behind his back and contacting his physician.

Cite: Hansen v. Fincantieri Marine Group

This article previously appeared on our sister website, HRBenefitsAlert.com.

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