What are your biggest challenges when it comes to the Family and Medical Leave Act (FMLA)?

For many benefits/HR pros, it’s administering intermittent leave and making the right call about eligibility. Here’s guidance on how to proactively handle two common scenarios that give administrators fits:

1. Can’t pinpoint need or frequency for leave

Even when an employee’s health condition is considered “serious” under FMLA and a doctor provides certification, it’s still tough to pin down the need for – and frequency of – intermittent absence.

Migraine headaches are one such condition that give employers fits with FMLA. Chronic pain (without a diagnosis of a specific cause) is another. In one case (Sconfienza v. Verizon), a woman suffering from migraine headaches asked her employer for intermittent FMLA leave.

Her doctor informed the employer she’d need to take off several days a month, on an as-necessary basis. Each time she had an episode, she asked for leave, sometimes for part of a day, often more than one day.

When several of her requests were delayed or denied, the woman sued for FMLA discrimination. The company countered by saying the delays were caused by the vague info the employee provided about her treatments.

To clear up the matter, the company had another physician contact the employee’s doctor. The employee’s doc refused to cooperate, citing privacy issues. So the company denied the leave.

A U.S. District Court judge ruled the company was within its rights to delay or deny leave in this case. But the company got slapped down because it never asked the employee for permission for her physician to be contacted by another doctor.

Under FMLA, the judge said, the request for more medical info should’ve been brought to the employee’s attention. Then, if the employee failed to get the needed clarification from her doctor, the company was free to deny intermittent leave.

The recent changes to FMLA will provide some relief to employers in similar situations. The new rules allow the plan administrator (but never a supervisor) to contact the employee’s doctor to request the documentation necessary to process FMLA. This can at least establish whether leave is necessary, although the frequency may still be tough to pinpoint for a condition like chronic migraines.

2. Their chronic pain becomes yours

How about cases in which an employee chronically claims to be in “too much pain” to work? Chronic pain is considered a serious health condition. But unless there’s a known cause (e.g., a torn knee ligament), it’s often tough to document the need for FMLA.

Even worse, legit absences for pain (not the folks who conveniently get a backache every Friday) are tough to predict and designate as FMLA. One key to lessening this problem may already be under your nose.

Many employers’ health plan networks include pain management specialists. Educating employees about seeking out network specialists for legitimate chronic problems can save the company a lot of hassle down the road.

Ideally, an employee suffering from chronic pain goes to a specialist early in the FMLA certification process – preferably as his or her first stop after the primary care doctor. How it works: The doctor uses X-ray guidance to locate the source or sources of the employee’s pain, and determines a treatment schedule.

This often makes FMLA documentation easier, and helps you better predict how often the employee will miss work.

Tags: FMLA