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If you have doubts about FMLA eligibility, don’t hesitate to seek a second medical opinion

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in FMLA Guidelines,HR Management,Human Resources

Back in August, we told you how a federal court had dismissed a case involving a woman who had taken her child out of day care for the summer and asked for FMLA leave so she could care for him until school started. (See “School’s out for summer! But the FMLA doesn’t cover day care”.)

Now the same court has reinstated the lawsuit after taking another look at the facts.

Recent case: UPS employee Veda Stroder’s 4-year-old son was enrolled in a day care center run by the Greensboro school system. The school system provided him with twice-weekly, 30-minute speech therapy sessions during the regular school year.

When school let out for the summer, the boy could no longer attend those sessions, so Stroder applied for FMLA leave, hoping to continue working intensely with him on her own.

She tried to get his pediatrician to provide an FMLA certification. When UPS reviewed the form, an HR professional concluded that the doctor hadn’t said the boy suffered from a serious health condition or that he needed to be home with his mother during the summer instead of at day care. UPS denied the FMLA request, and Stroder was terminated when she didn’t come back to work.

But according to Stroder, she told the HR professional that her son was being screened for autism and that his day care providers said his behavior and learning were deteriorating. They said he had begun hiding under tables and standing on top of them. In addition, his toilet training regressed and he regularly soiled himself. Stroder also explained that she couldn’t take the boy out because he reacted poorly to stimulation and sometimes had episodes when he closed down emotionally.

The court said Stroder’s case should move forward for several reasons.

First, it seemed clear the child could not continue attending regular day care. Therefore, he was unable to participate in his regular, day-to-day activities. The court also noted that sometimes it takes time for medical professionals to arrive at an accurate diagnosis that confirms someone has a serious health condition. That doesn’t mean the person or a caregiver can’t exercise FMLA rights in the meanwhile.

Second, the FMLA allows leave to provide psychological support for someone with a serious health condition. That’s what Stroder said she was using FMLA leave to do until her son could receive the specialized treatment he needed.

Finally, the court said that if UPS really believed the child did not have a serious health condition, it could have requested a second opinion. While second opinions aren’t required, employers that don’t take advantage of the right to such opinions risk liability for wrongfully denying leave.

The court ordered a trial to determine whether UPS violated the FMLA by denying Stroder’s leave request and then discriminated and retaliated against her for trying to exercise her FMLA rights. (Stroder v. United Parcel Service, No. 1:09-CV-335, MD NC, 2010)

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