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.