A new tool to fight FMLA abuse

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

The decision in a Colorado case tightens up FMLA regulations 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 Family Medical Leave Act protections. But the court said the employee didn’t prove he had a serious condition, and so had no claim under FMLA regulations.

Greater medical certainty means less FMLA abuse
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 FMLA regulations.

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 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, you can doubly make sure it isn’t FMLA abuse.

Exception: Employees can qualify for leave under current FMLA regulations 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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