Business Management Daily — FREE reports on business, management, leadership, career, communication, human resources, employment law, technology, sales and small business tax
Must you offer FMLA leave for ‘possibility’ of a serious condition?
http://www.businessmanagementdaily.com/articles/17398/1/Must-you-offer-FMLA-leave-for-possibility-of-a-serious-condition/Page1.html
Mindy Chapman, Esq., Mindy Chapman & Associates
Mindy is a nationally recognized authority in EEO laws and is a contributing editor to the HR Specialist: Employment Law monthly newsletter. She is highly regarded for her workplace compliance training that “clicks and sticks,” because it is practical and memorable. She is also the coauthor of the American Bar Association’s bestseller and authority on civil rights training, “Case Dismissed! Taking Your Harassment Prevention Training to Trial."

The Society for Human Resources Management (SHRM) has recognized Mindy as one of its Top Ten Speakers nationally. She has trained extensively in all industries at all levels of the workforce—from boardroom executives to managers and supervisors and to hourly employees in union and non-union environments. 
By Mindy Chapman, Esq., Mindy Chapman & Associates
Published on 1/8/2009 - 10:00am
 
Employees request time off for doctors' appointments all the time. But, do you have to grant them? Could the request trigger FMLA rights, even if the employee was not previously incapacitated or ill for three or more calendar days? A new court ruling says that if an employee simply thinks she has a serious condition, she may be able to take FMLA leave to have it checked out ...
Employees request time off for doctors' appointments all the time. But, do you have to grant them? Could the request trigger FMLA rights, even if the employee was not previously incapacitated or ill for three or more calendar days? A new court ruling says that if an employee simply thinks she has a serious condition, she may be able to take FMLA leave to have it checked out. Bottom line: Don’t be so quick to pull out the “request denied” stamp …

Case in Point: Melody Baucom, an optical assistant at a North Carolina eye center, took 10 weeks of FMLA leave after giving birth. Shortly after returning, she requested FMLA intermittent leave to attend a doctor’s appointment for medical tests unrelated to the pregnancy (for “mysterious growths on her cervix”). Baucom completed the Department of Labor’s intermittent leave request form and gave it to her employer 30 days before the appointment.

The benefits coordinator denied the leave request, saying Baucom wasn’t entitled to FMLA leave because she didn’t suffer from a qualifying “serious health condition.” The cited reason: Baucom hadn’t been previously incapacitated or sick for at least three consecutive calendar days. 

The benefit coordinator told Baucom she could only take personal time off (PTO) for her doctor’s appointment. But since she had no PTO days left, she was told she’d be fired if she attended the appointment. Baucom kept her appointment. The company kept its word. She was fired.

Baucom sued under the FMLA, saying she was entitled to use FMLA time to attend a doctor’s appointment for testing. The company argued that Baucom wasn’t eligible because her condition didn’t rise to the serious level (i.e. three consecutive calendar days of incapacity). But Baucom argued that medical testing to see whether she had a serious condition should qualify for FMLA leave.

What happened next … and what lessons can be learned?

The court sided with Baucom, noting that FMLA regulations provide numerous situations that qualify serious health condition and that “three consecutive calendar days of incapacity” is only one of them, albeit a very common one.
The court found that a doctor’s visit to obtain test results to determine if a serious health condition exists and to discuss potential treatments can be covered by the FMLA and entitle a covered employee to intermittent leave. (Baucom v. Cabarrus Eye Center, 12/10/08)

3 Lessons Learned …Without Going to Court

1. Train decision-makers on the FMLA. In this case, the benefits coordinator improperly informed Baucom that she could only use the remaining two weeks of her FMLA leave for baby-related reasons (like bonding) because her initial FMLA request was pregnancy related. Wrong, wrong, wrong. Earned leave can be taken for a mix of covered reasons. Know them all.

2. Never withhold forms. The benefits coordinator refused to give the employee the FMLA intermittent leave request form because the leave was going to be “denied anyway.” Always hand over the form and wait to make a decision until it is completed and returned. In this case, the court said that the information the doctor provided on the form entitled the employee to the leave.

3. Don’t be so fast to fire. There’s always time to terminate an employee, but only do so after a thorough review. Strongly consider legal consultation if there’s a potential medical issue. Here, the employer knew from the doctor’s certification that Baucom was being seen for “mysterious growths on her cervix.” She was fired the day after she went to her appointment. Remember, employers that pull the termination trigger quickly on employees with medical issues will not get sympathy from juries with access to the corporate wallet.

Important: New FMLA regulations take effect Jan. 16
For the past 15 years, complying with the FMLA has been complex, but at least the law (once you figured it out) stayed the same. On Jan. 16, 2009, that all changes. That’s the day the first major overhaul of the FMLA takes effect. The new rules alter the way you must administer FMLA in your organization. Some changes favor employers by offering greater flexibility in administering leave. But it’s imperative that HR professionals move quickly to update their policies so they don’t inadvertently violate the law. For details, read The new FMLA: 9 changes you must comply with.

Also, employers are required to post an updated FMLA poster in their workplaces. Obtain a free copy by clicking here.