The one little FMLA change that could mean the most to you
March 4, 2008 by Jim GiulianoPosted in: Employment law, FMLA, Latest News & Views
In the 477 pages of proposed changes to the FMLA, there’s one line that could have the greatest effect. The first meaningful revision to the Family and Medical Leave Act consists of 477 pages of bureaucratic prose that obscures the one page that probably means the most of HR managers and their employers.
In fact, it really boils down to just 11 words: Employers can contact doctors directly to clarify questions about medical leave.
Under the original provisions of FMLA, if you had a question about a doctor’s note or other leave documentation, you had to take a twisted road to get an answer.
First, you had to ask another doctor to get clarification from the employee’s doctor. Then you had to hope that when the two doctors conferred – however long that took – nothing got lost in the translation.
Of course, if there was any confusion, you had to ask the outside doctor to contact the employee’s doctor again and … well, you get the picture. It’s reasonable to believe that in a lot of instances, the answer might come long after the employee has returned from FMLA leave.
It’s a good deal, but …
Under the new proposals, however, you can call the employee’s doctor directly to clear up confusion and get your answers.
It’s a good deal, but you’ll want to be careful about what you ask because some questions still can be interpreted as an invasion of medical privacy. And you’ll meet the terrible, swift sword of the law if you’re found guilty of that.
To avoid that problem, be sure to
– write down and keep a record of your question – so you’ll have proof of what was asked
– stick to the subject – and stay away from questions that stray into other subjects about the employee’s health, and
– if you have a conversation with the doctor, ask him or her to document the answer in a letter to you.
Tags: Family and Medical Leave Act, FMLA, Leave, privacy
March 10th, 2008 at 8:34 am
Can you provide a list of questions that would be acceptable to ask the health care provider that won’t invade the employees privacy? For instance we had an employee who went out on a medical leave for surgery. The certification form just said surgery and gave a time frame for how long she would be out, but there was no mention of what kind of surgery or what condition it was intended to treat. We found out after the fact that it was for a cosmetic procedure which should not have been covered. What types of questions could we ask to avoid such a mistake in the future?
Thanks for your help.
March 10th, 2008 at 10:41 am
Joanne: I’ll try to answer.
1) Yes, the FMLA can be used for elective surgery. However, please note 29 CFR Part 825.114(c), which states that “Conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not ’serious health conditions’ unless inpatient hospital care is required or unless complications develop.”
In practical reality, elective surgery is generally covered, though it is always considered foreseeable, requiring advance notice and planning around the employer’s work requirements. Why is it covered? Because it is difficult for an employer to make a pronouncement that the elective surgery is unnecessary from the point of view of the patient/employee, who may claim that the surgery is necessary for his/her well-being.
2) Although neither the statute nor the regulations address this exact issue (at least I haven’t seen it addressed), I would assume that the employer can ask what type of surgery is being performed for the purpose of determining whether it will be covered under the above regulation.
Jim Giuliano
Editor
HRMorning.com
March 11th, 2008 at 6:53 am
I have an employee on intermittent FMLA for chronic asthma. It is suspected by several people, myself included, that this employee often abuses this, taking 3-4 days off at a time and citing the FMLA leave to cover it. Under this revision of the law, would it be allowable to contact her doctor and confirm that these days were necessary for medical treatment?
March 11th, 2008 at 11:49 am
From my understanding there are privacy laws that will not allow a doctor to speak to anyone about person’s medical conditions.
April 8th, 2008 at 2:55 pm
Jessica,
I don’t think you could call the doctor to confirm that your asthmatic employee’s 3-4 days off were required, but if it’s standard policy for all employees, you can request employees whoare absent for three or more days provide some kind of doctor’s certification that the asbsence was medically necessary, especially if the employee has applied for and been approved for intermittent FMLA leave. You never have to take the employee’s word for it. Even a simple note from the doctor should work.
Of course, I’m not neccessarily familiar with your state’s laws. Medical leave provisions under some state laws are slightly different than the federal statutes.
Jim, I’m wondering if Matina has a point. How do privacy laws affect this new ability to seek confirmation directly from the patient’s doctor. Would the patient have to sign a statement of some kind allowing you access to their medical information?
April 15th, 2008 at 8:24 am
I am also curious as do how privacy laws affect this new ability to seek confirmation directly from the patient’s doctor? On the form applying for FMLA would you need a signed statement with permission to contact their doctor?
April 15th, 2008 at 8:44 am
No comment, but I would like to receive followup comments via e-mail.
May 20th, 2008 at 7:16 am
Unfortunately, my opinion is not one of support for contacting an employee’s doctor directly. The reason companies have other entities administer FMLA and disability benefits is to support the employees right to confidentiality. Further, allowing managers or supervisors to contact employee physician’s directly is, in my opinion, unethical and can lead to inappropriate behavior, assumptions, and conflicts. This type of allowance will undoubtedly lead to law suits on behalf of employees.
May 21st, 2008 at 12:40 am
I agree with Ms. Maguire-Smith. This sort of thinking could unfortunately force employees to resort to firms that monitor an ex-employers behavior, in order to make certain no boundaries are crossed. It has been my experience that the employee can willing share additional information to his/her supervisor, and while not required to, as a measure of good faith. Any contact with an employee’s physician would clearly be a violation of privacy laws as well as HIPAA regulations.
June 27th, 2008 at 11:58 am
Does anyone know if under the current law if you suspect someone is abusing there FMLA in order not to receive discipline for tardiness, and it has been approved for 6 months, can you ask them to recertify before the 6 months originally granted has exhausted?
August 11th, 2008 at 11:40 am
LaTasha,
Yes, you can require an employee to recertify up to every 30 days for a serious health condition. Review your CFR’s for the correct statute. What we do is draft a letter to the Physician, give it to the employee with instructions to provide to their treating provider. THe letter we draft asks additional questions, not medical in nature, but ones that ask about frequency and duration of occurrences (such as for chronic asthma). Good luck.
August 11th, 2008 at 3:49 pm
Seashell,
Would you be willing to share your recertification form. I would love to see how it is formatted. We are in the process of revamping our FMLA policies and that form would be a great help. Thanks.
August 11th, 2008 at 5:15 pm
Debbie, send me your email address and I will send you one of our draft letters that we have used.
oregondiver@hotmail.com
September 23rd, 2008 at 10:28 am
We have a situation where the manager contacted the employee’s doctor to verify if he was actually treated on the dates indicated on the return-to-work medical note. To complicate things even more, the employee, who was out for a total of six days, worked from home for four of those days. In email, the employee told the manager while recuperating he would be working from home and was very specific about what he was doing. On the other hand, the manager responded in email stating that he was to take sick leave and he was not to come to the office due to his leg problem, and that she would try to find a temporary replacement. The employee, however, continued to work from home until he returned back to the office. Also, when he initially went out, FML was not offered to him. Question should sick leave be deducted for the entire time that he was out? Or should he be paid for the four days that he worked from home even though the manager did not approve this work arrangement?
September 23rd, 2008 at 12:25 pm
There are a few facts that would need to be clarified before that could be answer. Such as, is the employee exempt or non-exempt? And, did the doctor specify on a “able to return to work” date? If the doctor did not state that more than 4 days were needed off then FLMA would not have been offered. The other concern I have is the fact the employee still “worked” from home even after it was addressed by the manager. Is the company still required to compensate the employee? The law tells us the the employer has to pay worked hours and overtime even if it isn’t approved, would this situation also fall into such a catergory?