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mad-doctor-nerd.jpgWhen it comes to FMLA medical certification, my clients have many complaints.

One beef, in particular, is vague medical information they receive on a certification completed by the employee’s primary care physician. This is particularly true where the employee’s mental health is at issue. Employers (rightfully) complain that they deserve medical information from a specialist who is far more knowledgeable about the employee’s specific medical condition. As a result, my clients ask me whether they can require that the employee return initial certification or fitness-for-duty certification from a specialist.

I have been a bit reluctant to give the green light. Until now.

Facts

Take the case of Erica, a community outreach worker for the City of Milford. Erica had a knack for taking a leave of absence after she was disciplined or coached about her performance. Coincidence, I’m sure.  On one such occasion, Erica requested a continuous leave of absence due to “severe anxiety.” In support of her leave, Erica submitted certification from her primary care doctor, who indicated that Erica was “under care of psychiatrist and therapist.”

Given the psychiatric nature of the problems that led to Erica’s leave of absence, the City’s HR Director required that Erica submit a “new” certification from her “treating psychiatrist.”  Even more, she told Erica that she also would be required to provide fitness-for-duty certification from the same psychiatrist to confirm that she is able to perform the duties of her job at the conclusion of her leave.

Erica complied. After she submitted certification from her psychiatrist, her leave was approved.

Upon return to work, Erica provided certification again from her psychiatrist stating that she was “cleared medically to return to work.” Concerned about whether she could safely perform her duties at work, the HR Director required that Erica provide additional details about her ability to return to work. Specifically, the City wanted Erica’s psychiatrist to review Erica’s job description and confirm that she could safely perform the job.

Notably, the City delayed Erica’s return to work for six days until she provided the additional information. Erica provided another letter from her psychiatrist explaining his observations of her condition and stating the following: “Having reviewed [Erica’s] job description and observed her demeanor in-person, it is my conclusion that [Erica] is medically cleared to return to work.”

In a twist to thicken the plot, Erica then resigned. And as former employees are inclined to do, she sued. Among other things, she claimed that the City interfered with her FMLA rights when it required her to provide a second initial certification and when it delayed her return to work and ordered her to provide additional information from psychiatrist about her ability to return to work.

Initial Certification

The Court soundly rejected Erica’s argument that the employer violated the FMLA when it required initial certification from her psychiatrist. Noting that Erica’s primary care doctor “repeatedly” referenced her treating psychiatrist when describing the basis for FMLA leave, the court determined that it was perfectly acceptable for the employer to request that the treating psychiatrist cure the ambiguities in the medical certification.

The court also found compelling the fact that the City clearly laid out for Erica the specific actions needed to cure the deficiencies in her original certification and gave Erica ample time to obtain the information.

Fitness-For-Duty Certification

The court also found that the employer had the right to delay Erica’s return for six days and require a more specific fitness-for-duty certification. Score!

When it comes to fitness-for-duty certifications, employers can require that the health care provider address two important criteria in the documentation:

  1. Confirm that the employee is able to resume work
  2. Specifically address the employee’s ability to perform the essential functions of the employee’s job

Therefore, a generic note even from the psychiatrist stating that the employee can return to work is not good enough. As the court also affirmed here, the employer has the right to insist that the health care provider review the job description for the position and confirm that the employee can perform those job duties. And, according to this court, the employer can require that this information be provided by the psychiatrist, as opposed to a primary care doctor. Bento v. City of Milford

Insights for Employers

This is good stuff, isn’t it?

A couple thoughts before we break open the bubbly:

  1. Does this court decision give employers carte blanche to require that two doctors certify an FMLA leave? Not quite. However, it does give us fairly clear guidance in situations where the primary care physician completing the certification appears to have had little to no role in the actual treatment of the employee’s underlying medical condition. This is particularly helpful where we are dealing with a mental health condition. Therefore, in those instances where it is clear that the primary care doc is relying on (and refers to) treatment provided by a specialist, this court decision tells us that we can safely require that the employee obtain medical certification from the specialist treating the employee before we can grant or deny the FMLA leave request.  This is good stuff!
  2. This decision also is helpful in delaying a return to work where the employee provides a simple prescription pad note clearing her return to work. As this court decision makes clear, we can require that the health care provider confirm that the employee can return to work and that (upon review of the job description) the employee can safely perform the duties of her position.
  3. Keep in mind, however, that the FMLA regulations have very specific requirements for seeking fitness-for-duty (FFD) certification upon return to work:
  • The employer must provide written notice to an employee of the need to provide a FFD certification prior to returning to work.
  • This notice must be provided with the FMLA designation notice and include the essential job functions to be reviewed by the doctor.
  • The employer must have a uniformly-applied policy or practice that requires all similarly-situated employees (i.e., same occupation, same medical condition) who take leave for such a condition to provide FFD certification.
  1. Some employers have genuine concerns about whether the employee is actually fit to return to work, even after receiving an otherwise compliant FFD certification. Can employers require that an independent medical examination be completed before the return to work? Maybe. But you have to follow very specific procedures, which I previously outlined for employers here.
  2. Where you have any concerns about whether you can push back on initial or FFD certification, be sure to discuss first with your employment counsel. Although this court decision is a welcome confirmation for employers, we’re still venturing into unchartered territory here, as I don’t know of another court addressing these issues as specifically as this one has done. So, we must tread carefully – and in a compliant manner.

Sounds like a topic I will need to discuss at my upcoming webinar on using medical certification to combat FMLA abuse.  Have you signed up for it yet?  Click here!

Photo credit: Dreamstime.com

Webinar2When: Tuesday, November 15, 2016 (12:00 – 1:15 p.m. central time)

Online registration: Click here

FMLA Medical certification can be the most effective tool to help employers confirm an employee’s medical condition and their need for time off from work. So, why does such a critical tool tend to create angst, confusion and frustration for employers when administering FMLA leave?

Not any more. Please join Megan Holstein, Vice President of Compliance at Reed Group, and me for a complimentary webinar that will once and for all conquer difficult FMLA medical certification issues employers face. Megan and I will cover certification in detail to help employers deal with the most confusing and maddening medical certification issues.

This is not an FMLA basics presentation, and it’s not for the faint of heart. Using real life situations from our own experiences in dealing with the FMLA, we will cover topics such as:

  • Analyzing the key parts of the medical certification form, and what sections you should focus on to ensure you have the information you need?
  • Best practices for employers when an employee fails to return medical certification or turns it in late – can you deny some or all of the leave?
  • Contacting the employee’s physician – can you get permission in advance to contact the doc?
  • What can employers do when they notice a pattern of misuse or suspect FMLA abuse? How best to use recertification
  • Is a second/third opinion really worth the cost and time?

This session promises to be practical and fun. Click here to register for this complimentary webinar. We look forward to your participation. In the meantime, please email me at jsn@franczek.com with any questions that you would like us to address.

This program has been submitted to the HR Certification Institute and SHRM for review. Illinois MCLE credit also will be available to attorneys attending the program. For attorneys in states other than Illinois, we will provide proof of attendance, but CLE credit will be governed by your particular state’s rules.

Online HCPQ: Our employee is trying to support his need for FMLA leave with medical certification from an online health care provider. Is this valid under the FMLA?  And What if It’s a Licensed Clinical Professional Counselor? 

A: Tackling the online doctor issue first, my knee-jerk reaction is NO WAY! After all, the FMLA regulations make clear that treatment by a health care provider means an “in-person” visit to the doc.

Case closed, right?

No so fast.

Before you slam the door on this FMLA request, reacquaint yourself with the definition of “health care provider” in the FMLA regulations. You may not have spent much time with it since it’s among the most boring provisions in the bunch. 29 CFR 825.125. There, the DOL has inserted a rather weasly, catch-all provision for health care provider.  Way down there, in subsection 125(b)(4), the regulations state that there are “others” capable of providing health care services, specifically:

Any health care provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits.

Drat! So, the regulations go to some length to define “who” a health care provider is, only to open the door to virtually anyone your health plan is willing to cover. The DOL acknowledges as much in the preamble to the regulations (see discussion of this issue at page 67954).  Mind yourself accordingly. In short, if your group health plan accepts the physician, you are in a tough spot to argue that this professional is not a health care provider for purposes of FMLA.

What About Licensed Clinical Professional Counselors (LCPCs)?  Are They Considered a Health Care Provider?

I am asked this question often enough. If you take a close look at the regulations, although clinical social workers are covered by the FMLA regulations, Licensed Clinical Professional Counselors are not. That said, the same issue above applies here. If your group health plan covers LCPCs, the regulations indicate that you have to accept medical certification from these professionals on behalf of your employee.

Dr LoveA couple of clients have asked me recently whether a health care provider can use his/her own medical certification form or “doctor’s note” to support the employee’s need for FMLA leave, or can we require the HCP to use the employer’s form. Or what if the HCP charges a fee to complete the form?  What do you do then?Here’s the usual question posed:

Q. We have requested a medical certification from an employee who is seeking FMLA leave. We have our own certification form, and gave the employee a copy. The employee came back with a form letter from the doctor’s office stating that they charge a fee for filling out FMLA certification forms, and a note from the doctor stating that the employee was injured and needed FMLA leave. Do we have to accept the note in lieu of our form?

A. Generally speaking, it doesn’t matter whether a medical certification is written on your preferred form or on the back of a bar napkin. So long as the document is signed by a health care provider, and is “complete” and “sufficient” in the sense that it provides the employer with all of the information needed to determine if the leave is covered by the FMLA, then the certification should be accepted. But that does not mean that you should unquestioningly accept a “doctor’s note” in place of a complete FMLA certification.

In the scenario above, the doctor’s note does not include all of the necessary information, such as the dates and expected duration of the employee’s leave. Here, we would recommend informing the employee in writing that it is his responsibility to obtain a complete and sufficient certification, and to pay any associated costs or fees. Give the employee a reasonable period of time in which to do this – at least 7 days, and more if they employee has a reasonable explanation for the delay (which is required under 29 CFR 825.305(c)).

If the employee fails or refuses to provide a proper certification (on your form or otherwise), you can deny the leave. However, a more detailed note or letter from the doctor might suffice, even if it is not on your preferred form. Exactly how much information is needed will depend upon the specific circumstances. Again, if you need more information to determine whether the FMLA applies, the appropriate course is to inform the employee in writing of the specific information needed to make the certification complete and sufficient.

But what if the certification actually was written on the back of a bar napkin? Given the size of most cocktail napkins, it is unlikely that the certification would be complete or sufficient. (That would probably require at least a dinner napkin.) Even if it were, we would strongly recommend contacting the health care provider to authenticate the certification, and perhaps seeking a second opinion.  You think?

What if the Health Care Provider charges a fee for completing the medication certification form?

Charging a fee for completing the FMLA medical certification form is a rapidly growing practice among health care providers.  In short, because the employee is responsible for providing the employer with complete and sufficient medical certification supporting the need for FMLA leave, the employee also is on the hook to pay the fee charged by the HCP.  Not the employer.

In these situations, I find it helpful to refer the employee back to the Department of Labor’s Employee Guide to the FMLA — specifically, page 12, which very clearly states that the employee is responsible for any costs associated with completion of the form.

Sick-note.jpgOne of the biggest headaches for employers when administering FMLA leave is how to deal with the employee who exceeds the frequency or duration identified on the employee’s medical certification. Nearly all of these situations involve intermittent leave, which is the type of leave most frequently abused by employees.

Take, for example, Joe, who suffers from irritable bowel syndrome (IBS). On the FMLA medical certification you received for Joe, his physician indicated that he will be absent for this condition three times each month for one day each episode.  But here’s Joe’s pattern over the previous two months: in month one, he was absent five times (one day each) and in month two, he was absent four times, but one of these absences was four days in duration.

Can we discipline Joe for exceeding his frequency and duration indicated on his medical certification?

Not yet. First, we must determine whether we have an obligation to recertify Joe’s absences under the FMLA.

As a general rule, employers can seek recertification only every 30 days unless:

Circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications). For example, if a medical certification stated that an employee would need leave for one to two days when the employee suffered a migraine headache and the employee’s absences for his or her last two migraines lasted four days each, then the increased duration of absence might constitute a significant change in circumstances allowing the employer to request a recertification in less than 30 days.  29 CFR 825.308(c)(2)

Joe’s circumstances clearly have changed significantly (i.e., more than double the frequency in month one, and a lengthy duration for one absence in month two).  Therefore, the regulations tell us we can do the following:

As part of the information allowed to be obtained on recertification for leave taken because of a serious health condition, the employer may provide the health care provider with a record of the employee’s absence pattern and ask the health care provider if the serious health condition and need for leave is consistent with such a pattern. 29 CFR 825.308(e)

Being the exceedingly reasonable, compliant employers we are, we follow the regulations and ask Joe’s physician to confirm for us whether this change in frequency and duration is consistent with Joe’s serious health condition and his need for leave. If your employment counsel is worth anything, they should be able to draft for you an articulate letter to the doctor explaining the pattern you have observed and your concerns about whether these absences are consistent with Joe’s need for leave.

The Response from Joe’s Physician

Eight times out of 10, Joe’s doctor simply will rubber stamp Joe’s pattern and confirm that these absences are related to his IBS. Right? That goes without saying. But 20 percent of the time, you strike gold — in other words, Joe’s doctor will respond with something to the effect, “I said three times/mo. for one day each, and I meant that! No soup for you!” Well, it’s never that neat, but you know what I mean — the physician will indicate that Joe’s pattern somehow is not consistent with his need for FMLA leave. If we’re lucky, in one in 100 situations, the doctor will tell us in not so many words that Joe is “full of c#&@”!  [In light of Joe’s situation, pun definitely intended.]

Can We Discipline Joe?  Here’s My Recommendation…

In these “20-percent” situations, can we discipline Joe for any absences that exceed the frequency and/or duration, as now confirmed by Dr. Zhivago?

What do the FMLA regulations tell us? Absolutely nothing. Nada. Zilch. Not even a half-hearted attempt by the Department of Labor to give guidance as to how employers might consider handling these situations.  Worse yet, I know of NO court cases that give the employer guidance in this particular situation.

So, what’s my recommendation?  You issue discipline for any absences that exceed the frequency and duration.  

And what’s my rationale? If this FMLA regulation at Section 308(e) (which allows you to contact the doctor regarding Joe’s pattern) is to have ANY meaning, it must mean that an employer has the right to discipline the employee for absences that exceed the physician’s medical opinion. After all, we have given the doctor two chances to provide cover the for the employee — 1) the initial certification and, with our letter explaining the pattern, 2) the recertification.  In this second go around, the doctor now has confirmed that he stands by his position that we can expect Joe to miss work three times per month at one day each because of his IBS. Therefore, it seems to me eminently reasonable — and defensible in an FMLA lawsuit — to discipline the employee for the excess absences.  I recommend standing by this approach until the employee provides a contradictory medical opinion.  See my previous post providing additional guidance in that situation.

To be clear, this position is not without risk, particularly given that no courts have offered their opinion on the issue. I have tussled with the DOL from time to time on this issue during FMLA investigations, and some of my clients have as well. Of course, the DOL takes the position that the doctor’s opinion on frequency/duration is just an estimate, and that you cannot hold the employee strictly accountable. Then, why DOL, did you issue the regulation at Section 308(e)? Ultimately, the DOL has relented in these handful of situations, suggesting that our take on this particular regulation makes some sense.

In the meantime, I look forward to litigating this issue, as I am confident for the love of all things good and holy in this world, the employer has the better argument here.

050312_clown_092.jpgWant a glimpse into a world where an employer fails to maintain a legally compliant leave management process?  Let me warn you — what you are about to read is not pretty and not for the faint of heart.

The Facts

Rachna was a resident physician at St. Vincent Health Center.  She also had a chronic heart condition known as superventricular tachycardia (SVT) which caused a rapid heart beat, light-headedness and dizziness.  It also caused her to lose consciousness on several occasions.  Serious health condition?  Ummm, yes.

On June 1, Rachna requested a leave of absence to undergo surgery to address the SVT.  When Rachna met with HR to discuss her need for leave, the HR representative arbitrarily assigned her a return to work date of June 24.  When Rachna told her that she’d likely need a little more time to recover, the HR rep agreed to push the return back two days — to June 26.   The medical certification from Rachna’s physician did not contain an anticipated return to work date or an explanation of the duties Rachna could not perform.  However, HR did not follow up with Rachna to ensure she cured the certification and it did not provide her an FMLA designation notice.

Rachna had surgery and, on June 27, she called HR (and later, her boss) to extend her medical leave. Again, her return date remained up in the air while she awaited clearance from her physician.  At that time, HR did not ask Rachna to provide recertification of her need for leave.  Instead, on July 11, a new HR representative overseeing Rachna’s leave of absence sent Rachna a letter asking her to provide a “receipt of an extension [of her leave of absence] from her physician” and to provide it by the end of that same week.  One week later, on July 18, when she did not hear from Rachna, the HR rep sent an email to Rachna asking her physician to “fax a statement extending your medical leave” through the end of July.

Beginning on July 18, Rachna left a series of voicemails for her physician seeking to obtain documentation supporting her extended leave.  According to Rachna, her physician would not speak with her and did not respond to her voicemails.  In late July, Rachna contacted her direct supervisor to report that she was having difficulty reaching her physician to obtain the appropriate medical documentation.

Just a few days later, on August 1, the Health Center terminated Rachna as a resident physician.

Insights for Employers

Where did the employer go wrong?  Let us count the ways, so said the court.  In a sobering court opinion, the trial court refused to dismiss Rachna’s FMLA interference and retaliation claims, sending them instead to a jury trial.  Patel v. St. Vincent Health Center (pdf)  Of course, these facts explain the employee/plaintiff’s side of the story, and the employer will have an opportunity to present evidence in support of its case at trial.  But let’s identify in the meantime where the Health Center apparently fell short on compliance:

1.  When Rachna sought a leave of absence, the HR rep assigned an arbitrary return to work date instead of obtaining the information directly from the certification.

2.  When Rachna’s physician did not provide a complete and adequate certification, the employer did not seek to cure the certification and obtain the information necessary to make a determination about whether the absence was covered by the FMLA.

3.  Instead, the employer compounded the problem by failing to issue a recertification request when the employee requested an extension of leave.  Who knew if Rachna even required any additional leave?  We’ll never know, since the employer issued a vague request seeking a note from the employee’s physician supporting an extension, and it gave her fewer than five days to provide it.  In these instances, the regulations are clear: when the employee seeks an extension of leave, the employer should issue a request for recertification and provide the consequences for failing to provide recertification.  It also must give the employee up to 15 days to return the certification (fewer than five days just won’t do).  When the employer fails to issue a recertification request in these instances, its leave management processes are not compliant, and they create liability for the employer.

4.  When the employer had enough information to determine whether FMLA applied, it was obligated to provide the employee a Designation Notice.  It didn’t do so here, which is yet another compliance error.

5.  Under the FMLA,  the employee must provide recertification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts.  Here, the employee provided enough evidence that she was engaging in good faith efforts to communicate with her physician to obtain an updated recertification.  Yet, the employer declined to engage her further.  Recall a previous post here where I outlined what an employer can do to determine whether the employee has done all she can to provide certification.

In the end, there apparently were so many holes in the employer’s FMLA administration that the court refused to dismiss not only the employee’s FMLA interference claim, but the FMLA retaliation claim, since the employee could provide evidence that that the employer’s reason for termination was mere pretext for firing her.

Leave management compliance is essential.  Tough lesson for this employer.

expiration dateOn February 28, 2015, the DOL’s recommended FMLA forms expired. And on March 1, the sun still rose in the east.  Life, as we know it, forged on.

It’s anyone’s guess as to when new FMLA forms will be issued, so in the meantime, I’ll hold off on belting out, in true Steve Martin fashion from the movie, “The Jerk“: “The New FMLA Forms Are Here! The New FMLA Forms Are Here!

Why Do the DOL’s FMLA forms expire anyway?

Under the Paperwork Reduction Act of 1995, the DOL is required to submit its FMLA forms every three years to the Office of Management and Budget (OMB) for approval, so that OMB can review the DOL’s information requests and the time employers spend responding to the requests.  OMB approved the DOL’s FMLA forms in early 2012 for the maximum period of three years.  Upon expiration of the forms (in this case, this past Saturday, February 28, 2015), the DOL may continue to use the forms while it seeks renewal of OMB’s approval.

Should Employers Continue to Use the Expired FMLA Forms?

Yes, for two reasons: 1) This past week, OMB extended the FMLA forms’ expiration date by 30 days to March 31, 2015 (so, I guess you could say that the forms are no longer expired, right?); and 2) in my discussions with the agency, the DOL has advised me that the best approach is for employers to continue to use the forms even after the expiration date and until further notice. Of course, this makes a whole lot of (common) sense.

The DOL’s forms–with the March 31, 2015 expiration date–can be accessed here:

Do We Have Any Say in What’s Included in the New FMLA Forms?

From now until March 27, 2015, the public is invited to submit comments about the FMLA forms, including any changes we’d like included in any new FMLA forms that eventually will be issued. Specifics on the comment period can be accessed here, but public comments can be directed to the DOL by U.S. mail or by email at OIRA_submission@omb.eop.gov.

Count the Equal Employment Opportunity Commission among the first to propose changes to the FMLA forms. A few months back, in November 2014, the EEOC sent a missive to the DOL asking that the DOL add: 1) a disclaimer in its model medical certification (for an employee’s serious health condition) instructing health care providers not to collect or provide any genetic information, as this information is prohibited under the Genetic Information Non-Discrimination Act (GINA); and 2) stronger language in WH-380-E (employee medical certification) and WH-380-F (family member medical certification) regarding the employer’s obligation to keep medical genetic information strictly confidential.

Employers should work with their employment counsel to review and amend their FMLA forms to include the suggestions above and to streamline forms to fit your operational needs.

As always, email me if you have questions about the expiration of current forms or are interested in submitting comments to the DOL on behalf of your company or industry: jsn@franczek.com.

Earlier this month, I took one for the team.  And I survived. boxing doctor

I had the privilege of presenting to a number of employers and health care providers at the annual “Impairment Without Disability” conference, an event sponsored by Mayo Clinic which brings physicians and employers together to share their common knowledge, experiences and goals, and work together to improve and eliminate unnecessary disability.

I had the wildly *easy* task of explaining to health care providers what employers believe they are doing wrong when it comes to handling and completing FMLA medical certification. Before we had finished, we arm wrestled to a draw, traded head locks, and overturned half the tables in the seminar room.

Rest assured, I got my licks in about how doctors need to do better completing the form, clearly spelling out the medical facts behind a serious health condition and the frequency and duration of such a condition; that they need to timely complete the form (which all too many of them are charging for); and how they need to better communicate with employers where information is required.

But when all was said and done, and all kidding aside, I realized that health care providers have a perspective worth appreciating when it comes to the FMLA. Here’s what I learned in my session with these HCPs:

1.  Despite our cynical employer viewpoint otherwise, health care providers are open to communicating more often with employers (at least more than I had anticipated). During my presentation, I emphasized that reasonable communication with employers about the medical condition, its frequency and duration, and the extent to which the condition impacts the job can go a long way to helping an employer understand what’s going on with the employee. Consequently, employers will be more inclined to work with the employee regarding necessary time off. As a related aside, HCPs also seem to appreciate that a modest amount of time on the phone with the employer sooner rather than later will result in fewer requests for clarification in the future (well, at least the near future!).

2.  HCPs don’t fully understand when they can and can’t talk to an employer about their patient, so employers should be more understanding of the obligation to follow HIPAA. In other words, if the HCP thinks HIPAA applies, we should be prepared to obtain a release from our employee to discuss the matter directly with the physician.   We also must be mindful of the FMLA regulations, which remind us that we are not entitled to information beyond that which is addressed in the medical certification form.

3.  Employers need to do a better job of explaining: a) why they are seeking recertification; and b) the patterns of absenteeism they are observing. You’ve dealt with the Monday/Friday pattern of absences, right? Under the FMLA regulations, employers have the right to submit this pattern to the HCP and ask her/him to confirm whether this pattern is consistent with the employee’s alleged serious health condition and the need for leave. The HCPs complain that, all too often, the employer’s correspondence is incoherent or is ambiguous as to what information it actually is seeking.

My employer friends, this correspondence should be a straightforward piece of cake. And I have noticed that employers and TPAs do not do an adequate job in communicating patterns and asking for information.  I have prepared model letters for employers in precisely these situations, and I trust your employment counsel has done the same. So, if I am not your employment counsel [ahem, why not?], seek out your employment counsel and get a copy of this model. If your attorney doesn’t have model correspondence, find a new one.

4.  Don’t assume that the HCP simply rubber stamps recertification or a “pattern” of absences without having a candid conversation with the patient. Again, our cynical side tells us that the HCP will simply attest to whatever tale the employee concocts. That may very well be the case. But don’t underestimate the candid conversation the HCP is having with their patient about their absence pattern(s).  Although we think it unlikely, a fair number of HCPs are cautioning their employees that their employer is “on to them” and advising them to mind themselves accordingly.  [For those HCPs who are not engaging in these candid conversations with their patients, I strongly encouraged them to do so.]

5.  Remember that HCPs are human and, as a result, they often can’t be precise when it comes to frequency and duration. As employers, we live and breath the frequency and duration noted by the HCP on the certification form. When the employee blows past either frequency or duration, we are eager to blame the employee and their HCP for the injustice.

Keep in mind – the HCP owns no crystal ball, so frequency and duration is a product of the HCP’s best estimate based on his/her medical judgment at that time. Although we’d be willing to beg HCPs to be more specific and accurate on frequency and duration, they often cannot, as the threshold for pain and the timing of a recovery differs for every individual.  Really, when it comes down to it, can any medical professional predict precisely how many migraines his/her patient will suffer from in one month? My friends, we’re talking best educated guess.  Not every HCP is the wise guy who completed this medical certification for one of my clients a few years back, which I share now for a chuckle on hump day.  Note the “probable duration” of the condition:

Picture1

Thanks to Jane Ryan and Mayo Clinic and Essentia Health for the invite and the opportunity to understand HCPs’ perspective. All kidding aside, the continued dialogue benefits employers and HCPs alike.

doctor's noteOver the past few weeks, I have had the pleasure of presenting on complex FMLA issues for attorneys and HR professionals attending several seminars sponsored by the National Employment Law Institute (NELI), which puts on some of the best employment law seminars in the country (my session, of course, being a drag on their success!). During one of the sessions, an attendee asked a thoughtful question that seems to come up from time to time in my practice:

Can an employer request that an employee submit a doctor’s note for each of their intermittent FMLA absences?

At the time, I didn’t give a terribly thoughtful answer, so I figured I would address it head on here for the benefit of my fellow FMLA peeps.  [My apologies to the woman in the audience dressed in red with shoulder length brown hair who asked the question…would someone be sure to pass this onto her?]

I wish I could answer this question with an unequivocal “YES,” but my guidance would go against the weight of court decisions on this very topic.  I wish, for instance, that I could advise employers that it is perfectly legal to maintain a policy in which employees who take FMLA leave for a doctor’s appointment must return to work with a doctor’s note in hand.  This would be entirely helpful, as it ensures that the employee actually attended the appointment and was absent from work for a legitimate reason.

Much to my chagrin, the courts don’t agree with me.

The latest example is Oak Harbor, an employer which understandably was sick and tired of its employees taking off on Fridays and Mondays.  To clamp down on suspected FMLA abuse, the company’s Human Resources Director sent a letter to employees containing language along the following lines:

In order for me to know when to apply FMLA to an absence, a medical note will be required from your provider for that absence. The note will need to indicate you were seen by a provider during the absence and how the absence relates to the FMLA qualifying condition. Without this information, I would be unable to apply FMLA to any specific absence.

Robert was one of Oak Harbor’s employees and requested leave for back pain.  He submitted complete and adequate medical certification indicating a need for intermittent leave for flare ups and ongoing monthly water therapy with his physician.  Interestingly, the company determined that nearly 90 percent of Robert’s absences over a six-year period fell in conjunction with a holiday or weekend.  Harumph!

When Robert failed or refused to provide doctor’s notes to confirm he actually attended the therapy sessions, he was disciplined.

The Court Ruling

In an unusual twist, Oak Harbor filed suit against Robert and another employee in a similar situation, asking the court to declare that its practice of requiring a doctor’s note for these above absences was perfectly legitimate under the FMLA.  The Court, however, gave Oak Harbor a legal smack down.  Finding the FMLA regulations clear with respect to obtaining an employee’s medical information, the court reminded the parties:

The employer may require the completion of a medical certification, which must be deemed sufficient if it includes, in the case of intermittent leave, the dates of expected treatment, the medical necessity of intermittent leave, and the expected duration of the intermittent leave . . . If an employer disagrees with the initial medical certification, a specific statutory process authorizes an employer to request second and third opinions, and to require the employee to obtain a subsequent recertification “on a reasonable basis.”

But once an employee provides “complete and sufficient” certification signed by the health care provider, the court opined, the employer “may not request additional information from the health care provider.” 29 C.F.R. § 825.307(a).  For this court, when the employer required a doctor’s note for every FMLA-related absence — doctor’s appointment or not — it was tantamount to requesting re-certification over and over again.  Given the very specific rules about seeking recertification, Oak Harbor’s practice was deemed illegal.  Oak Harbor Freight Lines, Inc. v. Antti (pdf)

Insights for Employers

So what do we do now?  Here are a few thoughts:

  1. Manage the medical certification process with all the skill and grace you have within you!  Get the information you need, seek clarification and verification if the opportunity presents itself.  Moreover, initial medical certification is an employer’s opportunity to seek second and third opinions, so be sure to advocate for your rights at this stage if you have reason to doubt the validity of the certification.
  2. Similarly, seek recertification if and when you receive information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification.
  3. The far majority of Robert’s water therapy sessions (typically scheduled on Fridays and Mondays) could have been held on Saturday, which was his day off.  Why?  Because the doctor’s office was open on Saturdays! Keep in mind that the FMLA regulations require that the employee make a reasonable effort to schedule medical appointments in a way that does not impact your operations.  So, when your employee needs time off for therapy or medical appointments, push back a bit on your employee to determine whether these appointments can be scheduled during non-work hours in the evening or on weekends.
  4. I believe the Oak Harbor decision still leaves the door open for employers to establish a policy that requires any employee to provide a doctor’s note in exchange for paid leave under the employer’s normal paid leave policy.  So long as the policy is applied consistently, the employer would not be singling out those employees on FMLA leave, nor would you be denying one’s FMLA leave.  I’ve opined on this topic before in a previous FMLA podcast you can access here.

 

kid playing doctorOn a number of occasions, we have discussed whether an employer can keep an employee out on FMLA leave even though they want to return, or whether an employer can require an employee to undergo a full medical examination before returning from FMLA leave.  This scenario often arises where the employer has concerns about whether the employee is mentally fit to return to work, although the concern is properly raised whenever there are legitimate reservations about whether the employee can perform the duties of the job.

In these situations, I have counseled employers to require the employee returning from FMLA leave to undergo a medical examination (pursuant to the ADA) if the employer has a reasonable belief that the employee’s ability to perform essential job functions are impaired by a medical condition or that he or she will pose a direct threat due to a medical condition.

Now, we have a real-life court case to back up my suggestions.  [Phew!  And here I’ve been flying by the seat of my pants this entire time!]

The Facts

Here are the quick facts:  Susan was a district attorney investigator for the Los Angeles County District Attorney’s Office.  In her role, she served arrest warrants, made arrests, interrogated suspects, and booked prisoners. After the death of her brother-in-law, Susan began experiencing bouts of depression, which she attempted to control with medication.  Her behavior still was quite erratic at times, as she suffered from high highs and low lows.  On two separate occasions, her superiors questioned her judgment when executing various search warrants and performing other safety-sensitive work.  She also appeared nervous when performing her work and had recently pointed her fake weapon at other team members during a tactical training session, which was a no-no.

Susan later approached her boss and informed him that she would need to take one month off work.  She began crying and stated that she “needed to get better.”  She anticipated being in the hospital for two weeks, followed by two weeks of outpatient treatment.  Afterward, the DA’s office granted her leave.  On her FMLA medical certification form, in response to the question, “Will the condition cause episodic flare-ups periodically preventing the employee from performing his/her job functions?”  her psychiatrist wrote, “Unknown.”

Upon expiration of Susan’s FMLA leave, the DA’s office returned Susan to work — but it immediately placed her on a leave of absence pending a medical examination to confirm that Susan could “perform the duties of [her] job satisfactorily and without undue hazard” to her or others.  Susan refused to appear twice for an evaluation because she believed it violated her FMLA rights, since she felt she should have been restored solely on the basis of her own doctor’s fitness for duty determination.  She later sought a court injunction to halt the medical examination.

The Ruling

Finding that Susan had been provided all rights afforded to her under the FMLA, a California state court dismissed her FMLA claims.  The court determined that Susan had been provided all 12 weeks of leave and restored to work.  Thus, the employer didn’t interfere with any FMLA rights, since Susan’s FMLA protections ended once she returned to work.  At that point, the ADA took over, and the employer had the right to require a medical examination under the ADA (at the employer’s expense) by the employer’s health care provider because the examination was job-related and consistent with business necessity.

As the court pointed out, even the Department of Labor takes the position that the employer can require a medical examination under the ADA once the employee has returned from FMLA leave.  Notably, in the preamble to the 2008 changes to the FMLA regulations, the DOL stated in no uncertain terms:

the Department intends to make clear that, once an employee returns to work and is no longer on FMLA leave, an employer may require a medical exam under the guidelines and restrictions imposed by the ADA. At that point, the FMLA’s fitness-for-duty regulation no longer applies.  (73 Fed. Reg. 67934-01, 68036.)

Insights for Employers

The court’s guidance gives employers a road map we clearly can follow: before the employee’s return to work from FMLA leave, the employer must accept the employee’s health care provider’s certification and return the employee to the same or equivalent position; after the return to work (and I mean immediately upon return), FMLA protections no longer apply, and the employer may immediately place the employee on a leave of absence and require a medical examination pursuant to the ADA.  In doing so, the employer need not ignore pre-FMLA leave events when assessing the fitness for duty of an employee who has returned from an FMLA leave.  As stated above, the employer need only have some objectively reasonable basis for the examination independent of the FMLA leave itself.  White v. County of Los Angeles (pdf)

But beware: independent medical examinations will not be appropriate in every case.  In fact, they won’t be necessary in the far run of situations.  But if it is, the employer should be ready to demonstrate that the employee’s condition “impacted, or posed a risk to, the employee’s work.”  Here, the inquiry was straightforward, since Susan’s job required her to carry a gun and the court found that her depression itself was sufficient to justify the additional medical examination.

Finally, for our California friends: although the court decision addressed only issues arising under the FMLA and ADA, the court’s reasoning seemingly would apply to similar issues covered under the California Family Rights Act (CFRA) and the fitness for duty obligations under the California Fair Employment and Housing Act.  (However, beware of these acts’ prohibitions against unlawful medical inquiries.)