Benefits & Compensation News

They got FMLA for that? 3 sticky situations

What’s your biggest challenge when it comes to the Family and Medical Leave Act (FMLA) administration?

For many benefits/HR pros, it’s administering intermittent leave and making the right call about eligibility. Here’s how to proactively handle three common scenarios that can wind up in court:

1. Can’t pinpoint leave need or frequency

Even when an employee’s health condition is considered “serious” under FMLA, it’s sometimes 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 recent case (Sconfienza v. Verizon, Inc.)  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 doctor 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 still lost the case 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 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.

2. Breaks in service time

If an ex-employee later comes back to work at your firm, does his or her previous service time count toward FMLA eligibility? The answer is yes. A worker needn’t be continuously employed to meet FMLA’s 12-month, 1,250 worked-hours eligibility rule.

In fact, a court recently ruled in favor of a woman rehired some two decades after her previous service (O’Connor v. Busch’s Inc). She was in an accident a short time after her return and was denied FMLA leave based on lack of service time.  The court said that her previous stint at the company counted for FMLA purposes.

The feds have been promising for years to revise FMLA to close this legal loophole. The DOL has said it will unveil the final plan this summer, but as of yet, nothing has been forthcoming. It’s believed that when the changes finally come, service time prior to a continuous five-year break will no longer count for FMLA eligibility purposes.

For now, though, all previous service time counts.


3. Their 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 the network specialists can save 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 makes FMLA documentation easier, and helps you better predict how often the employee will miss work.

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  • Lillian

    If an employee having more then 2 yrs of employment service requires flma, and returns back to work less then the flma requirement, can the employee request another flma time off in the same year??

  • Mary Baum

    My husband was on FMLA for a torn shoulder from a fall at work. He worked light duty throughout the treatment including physical therapy. When it was finished, he was told he had to undergo a performance test which indicated that he could only safely lift 50 lbs. Human Resources determined that his job description requires that he lift 100lbs. Consequently, he was forced to take early retirement. They hired him back parttime (doing his same job) without any benefits. It now costs us $675/mo for insurance – he has no life insurance (he’s 61 years old and diabetic). Is this legal?
    Thank you very much for any help you can give me.

  • Cherene

    In response to Mary Baum’s question…if your husband was on FMLA due to a torn should from a fall at work then shouldn’t this have been workman’s comp? And if so, this sounds as if there were much more shady practices involved than a FMLA decision involving his job description. 1. His treatments and time off should have been covered by workman’s comp if it is a job related injury. 2. If job related, FMLA, will not come into play at all and his job description would not be evaluated by HR and he could not be forced into early retirement. He could be placed into another position as if his injuries cause him to no longer be able to do his prior job but this would mean a disability rating. Again, workman’s comp related not FMLA. Have you contacted an attorney regarding this issue?

  • Cherene

    I’m sorry, my spelling was attrocious. I meant torn shoulder and that the question should be asked if this is truly a FMLA issue or Workman’s Compensation issue.

  • Cindy

    I agree with Cherene — Mary’s husband should be finding out why this was not reported as a worker’s comp injury.

  • seashell

    Reply to Lillian,
    An employee may request multiple absences (for different FMLA reasons) but all absences must meet the FMLA requirements, and you only have to grant the protected leave for up to 12 weeks in your leave year. So they can request 10 weeks of SHC leave for their husband’s heart surgery and recovery and then if the employee (or spouse or qualifying child) has another condition, you would verify they worked 1250 hours from the date the new condition commenced (for a 1 year period from that date) and if they worked the 1250 hours within the past year, then you have to grant them another 2 weeks of FMLA. Again, answer is predicated on where these leaves fall within your leave year.

  • Autumn

    I have to disagree with Cheree. If it was workers compensation then a company has every right to run FMLA concurrent with workers compensation. Check with the laws in your state.

  • I have a question for seashell. If an employee takes 6 weeks of FMLA for maternity leave; then 2 months after her return to work, she needs to take another leave for her baby’s medical reasons, this would be denied because she hasn’t worked the required 1,250 hrs?

  • seashell

    Hi Cathy, that COULD be correct.

    Lets start with the assumption that her employer allows her to break up her 12 weeks of parental leave and take it over the course of a year…

    Say she takes 6 weeks of parental leave. ANd later her new baby has a SHC…Since this is a new condition, she would be subject to the 1250 hours worked policy. If she is a 40 hr week employee, then she should meet the eligiblity test. If she DOES NOT meet the 1250 hours (for the new condition: SHC of her baby), the she conceivably take the remaining of her 6 weeks of parental leave (even though she would be using it for the SHC of that baby, and not bonding). Does this make sense?

    once they give her (or him) the 12 weeks for one condition, they can’t take it away. But subsequent conditions (ie change for bonding to SHC) would need to meet the eligilbity test. Let me know if this doesn’t make sense.

  • Thank you for your help. I think I understand. FMLA is such a big issue to fully understand all the ramifications, and now there are more changes happening and changing.
    Have a great day, Cathy