Theprovides unpaid leave so employees can deal with their own or an immediate family member’s serious health condition.
Many employers are seeing a surge in requests forwhen an employee has a parent or child who needs help getting to medical appointments or undergoing treatments. Before you approve a request for such intermittent leave, make sure you are satisfied with the medical certification. That’s because challenging the underlying need later is difficult if not impossible.
Once you have been sued, arguing that the employee, parent or child didn’t have a serious health condition will be an uphill battle in court.
The best approach is to challenge the certification before you approve it by using the process approved by the Department of Labor regulations. That means getting (and paying for) a second medical opinion—and a third one if the first two don’t agree that the individual in question has a serious health condition.
It might cost a few dollars up front, but that’s far less expensive than drawn-out litigation in which you may not prevail.
Recent case: Denise worked at a medical facility as a clerk. Her elderly mother lived with Denise and needed frequent assistance getting to and from her medical appointments.
Denise therefore asked forto care for her mother.
She attached a medical certification from a health care professional that clearly stated her mother had a serious health condition. Her request was approved.
Then the trouble began. Denise’s supervisor refused to approve her for any time off on Mondays or Fridays, even if those were days her mother had appointments. As a result, her husband had to take time off from his job and lost pay since he couldn’t qualify forto care for his mother-in-law.
Denise was also written up for insubordination several times shortly after complaining to HR that her supervisor was interfering with her efforts to take approved intermittent leave.
Denise sued, alleging she had been denied the right to take FMLA leave. Among her damages, she listed the lost income her husband experienced for helping out when she wasn’t allowed to miss work.
Denise’s employer asked the court to throw out the case because she hadn’t been specific enough in her pleadings about exactly what condition her mother had.
The court didn’t buy it. The judge wrote that the fact the intermittent leave request was approved after Denise gave her employer a medical certification about her mother’s condition meant the employer couldn’t challenge whether her condition really was serious—at least not so early in the lawsuit.
Plus, the court said employees who are denied leave to care for a parent when they are eligible for FMLA leave can also sue for the costs incurred for that care they couldn’t provide. The husband’s lost wages were therefore fair game.
In other cases, damages might include hiring someone to perform the tasks the employee would have performed if she got her leave. (Fath v. Heritage Valley Medical Group, No. 2:12-CV-00989, WD PA, 2013)
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