Tight certification: Your best hope as Congress takes up paid FMLA leave bill

by on January 14, 2010 · 0 Comment POSTED IN: HR Info Center

If you haven’t tightened up your FMLA certification procedures yet, here’s another good reason to do so: Congress may be cooking up big new FMLA costs for you.

The senator who first pushed the legislation that eventually gave birth to the FMLA is at it again. Senator Chris Dodd, a Connecticut Democrat, is now introducing a bill that would make you pay workers for six of their 12 weeks of FMLA leave.

Not only does Dodd have the resume to make the new legislation happen, his party controls the Senate, and he even has a Republican co-sponsor for the bill, Ted Stevens of Alaska.

Get the information you deserve

Worst-case scenario for unprepared firms: Having to give six weeks’ vacation to anybody who’s willing to tell a tall tale to get it.

You don’t have to be in that position. Whether this bill passes or not, it’s a great idea to look over your FMLA leave certification procedures now.

Make sure you’re demanding all the information to which you’re entitled from employees and their doctors.

FMLA leave: License to go doctor-shopping?

Here’s the latest FMLA ploy by employees to get a court’s endorsement: shopping around for a doctor who’ll certify a serious medical condition warranting FMLA leave.

The court upheld an arbitrator’s ruling that an employee who was fired for absenteeism shouldn’t have been. A critical one-day absence should have been excused as FMLA leave, the arbitrator said. The employee’s first doctor’s visit resulted in an opinion that there was nothing seriously wrong with her, so a week later, she saw a nurse who was willing to certify she’d been unable to work on the day at issue.

The company said only employers can seek second opinions about FMLA certification. But the court said there’s nothing in the law to back up this idea.

Cite: Electrolux Home Products v. UAW

Thankfully: Court gives you a new stick for beating FMLA leave abusers

Regulations require two doctor’s visits while employee is off work

A federal appeals court has just handed you a useful weapon in the never-ending battle against FMLA leave abuse.

The decision in a Colorado case tightens up the rules about “serious medical conditions” for which employees can take FMLA leave.

An employee was fired after he took five days off, pleading a sore back and the flu. He sued for interference with his FMLA rights. But the court said the employee didn’t prove he had a serious condition, and so had no FMLA claim.

Greater certainty about FMLA leave

What sank the employee’s case was that he didn’t see a doctor twice while he was off work. The regulations say that an employee taking three or more days off for a medical condition has to see a physician at least twice for the condition to qualify under the FMLA.

Where the court broke new ground was in specifying that the doctor’s visits must take place during the “period of incapacity” – the time off sick. Previous court decisions had left the timing of the the doctor’s visits open. This played into the hands of malingering employees, and made it tough for employers to know when to approve or deny FMLA leave.

Making it stick

Now, when Art Absentee brings you an FMLA leave request, there’s one more hurdle you can require him to jump.

Exception: Employees can qualify for FMLA leave with just one doctor’s visit if the doctor gives them a treatment regime like a course of antibiotics or physical therapy.

Cite: Jones v. Denver Public Schools, No. 04-1447, 10th Cir., 11/2/05

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