It happens more often than you might think. An HR office begins receiving an unusual number of
It all points to what amounts to a scam: Employees have found a sympathetic health care provider to help them avoid overtime by providing medical certifications attesting to the need for intermittent FMLA leave.
If you spot such a trend in your workplace, don’t hesitate to insist on second and possibly even third medical opinions. The FMLA allows employers to get such certifications when they have a reasonable belief that the first certification isn’t quite legitimate.
Recent case: Leonard Platt was a crew dispatcher for CSX Transportation. His health care provider completed an FMLA certification that said Platt suffered from a chronic serious health condition consisting of “depression and anxiety, irritability that interfered with work concentration.”
The certification called for Platt to take time off during flare-ups and skip overtime at his own discretion.
When HR received the certification, it decided to ask for a second opinion because the same health care provider had been signing many FMLA certifications. The HR director would later testify that she noticed the doctor almost always said employees had the same kinds of conditions Platt had, and often urged giving employees the opportunity to decide for themselves when they needed time off. In other words, it looked to her as if the health care provider might be allowing employees to invoke at their discretion based on the intermittent leave certifications.
Platt’s second opinion said he didn’t have a serious health condition. Since the two certifications contradicted each other, CSX asked Platt to provide three names of professionals who could provide a third, tie-breaking certification. He did, and CSX picked one. This time, the certification was similar to the first one and recommended intermittent leave with little or no overtime. CSX then approved the FMLA leave.
Platt sued anyway, alleging that CSX had no legitimate reason to put him through the evaluation process.
The court disagreed. It said a pattern like the one CSX noticed was reason enough. Plus, it pointed out that Platt lost nothing—he was allowed to take intermittent leave during the evaluation process. (Andrews, et al., v. CSX Transportation, No. 3:06-CV-704, MD FL 2009)
Final notes: Want a second opinion? First, be sure you have a legitimate reason—and be sure to document it. You should pay for the second evaluation and make the process as easy as possible on the employee. Use a health care provider who is not closely associated with your company.
It is also a good idea to provisionally approve FMLA leave pending the evaluation. If the two certifications conflict, you can get (and pay for) a third, tie-breaking certification. It is an expensive and time-consuming process—that may be worth it under some circumstances. It will certainly discourage frivolous requests for intermittent leave.
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