One of the trickiest parts of administeringis figuring out just whether an employee’s health condition qualifies for leave. Who decides, and how?
Theis designed to grant time off to employees so they can deal with serious health conditions. The law defines a serious health condition as “an illness, injury, impairment or physical or mental condition that involves … continuing treatment by a health care provider.”
Thefurther define a “serious health condition involving continuing treatment by a health care provider” as requiring a “period of incapacity of more than three consecutive, full calendar days.” “Incapacity” is defined as the “inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore or recovery therefrom.”
2 approaches in court
How does an employee establish incapacity for three or more days? Is an employer required to take the employee at his or her word, or can the employer require the employee to support the claim of incapacity with medical evidence? Courts take two approaches.
Some courts hold that an employee’s own statements—without any medical support whatsoever—are sufficient to establish incapacitation to support a claim for. One court, for example, even allowed an FMLA claim to proceed when an employee’s statements about his health directly contradicted his doctor’s note, which permitted him to return to work without restrictions.
Other courts, including the 3rd Circuit Court of Appeals in its recent Schaar v. Lehigh Valley Health Services case, hold that an employee can support a claim of incapacity for FMLA-leave purposes with a combination of the employee’s own statements along with documentation from a health care provider. In the Schaar case, for example, the employee supported her claim for an FMLA entitlement with a doctor’s note (which said that she was incapacitated for two days), along with her own statements that she was incapacitated for another two days.
Both of those views give employees a tremendous amount of latitude to game the system by claiming FMLA leave that may not be medically supported.
Regardless of the legal standard employed in determining whether an employee is “incapacitated” and therefore eligible for FMLA leave, your best defense against potential liability is to use the FMLA’s medical certification process to verify the employee’s eligibility for leave.
Follow these steps to verify and certify an employee’s right to FMLA leave:
1. Provide a statement in your required FMLA eligibility notice requiring the employee to furnish certification of the serious health condition, along with a copy of the medical certification form. It is then the employee’s responsibility to return the completed certification, or give the health care provider any necessary authorization to release a complete and sufficient certification.
2. Ask the employee to return the completed medical certification within five business days after the leave begins. (In fact, the employee must be given up to 15 days to return the certification completed by his or her health care provider.)
3. Advise the employee that if he or she fails to provide a complete and sufficient certification, or fails to provide any certification, you may deny FMLA leave.
4. Request additional information from the employee’s health care provider if the medical certification is incomplete (required information is omitted) or insufficient (the information provided is vague, ambiguous or nonresponsive). You may ask the employee to provide this follow-up information, or under certain circumstances request the information directly from the health care provider.
5. Require the employee to obtain a second opinion if you have reason to doubt the validity of a medical certification. You will have to pay the expense of getting a second opinion. If the second opinion conflicts with the original certification, you may require the employee to obtain a third opinion, again at your expense. That opinion is final and binding.
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