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.

A famous coach once said, “It’s not what you tell your players, it’s what they hear.”

The same is true of about what you and your supervisors tell employees about FMLA and other leave policies. Even minor misunderstandings can cause major legal headaches.

Leave isn’t guaranteed

Some employees assume they’re entitled to extended paid leave or FMLA if they simply ask for it. Of course, it’s not that easy. Most organizations require written requests and have an approval process.

Here’s a recent case (Reed v. The Lear Corp.) of a classic communication breakdown that can land any company in court:

An employee strained his back, and missed an extended stretch of work. Shortly after the injury, he contacted his employer. He asked an assistant department head for leave.

The employee was told he was entitled to “provisional” FMLA leave while he used up his paid time off.
Unfortunately, the term “provisional leave” wasn’t explained to the employee, nor did he ask for clarification.

The worker took the term to mean he could take off as much time as he needed and then provide the necessary medical certification upon his return. Meanwhile, the employee’s supervisor grew anxious – and then furious – as the absences dragged on. The absences were marked unexcused, and the employee was fired for attendance policy violations.

Provided inaccurate information

The employee retroactively applied for FMLA. The request was denied. He then filed a wrongful termination lawsuit. The man claimed the company gave him the wrong info about the workings of its FMLA certification procedures.

He also argued that the days he missed were covered by FMLA and shouldn’t have counted against his attendance record. The company countered by saying the manager who told the worker he could take “provisional” leave had no authority to grant it. The firm pointed out all employees had received written information about the company’s leave policies.

After a lengthy court battle, the employer finally won the case. Even so, a lot of time and money was spent cleaning up an avoidable mess.

• Let employee set administrative wheels in motion. Let the employee break the news of her pregnancy to management. Never broach the subject first. Reason: There are still potential discrimination issues that can arise even if supervisors have the training and common sense to handle the issue privately and discreetly.

• Review benefits early in the process. Shortly after management is informed of the pregnancy, Benefits/HR should sit down with the employee to make sure she’s clear on your organization’s pregnancy-related benefits (including standard unpaid FMLA) and return-to-work policies.

• Follow doctor recommendations to the letter. If an employee’s ability to physically perform her job is affected by her pregnancy, it is up to her to provide written instructions from her doctor. Legally, employers are expected to carefully follow the doctor’s directions on how long the employee can work, her physical limitations, and necessary time off during the pregnancy.

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.