FMLA—HR’s own personal migraine. (Migraine people, says attorney Stacie Caraway, may have terrible headaches, but never so bad that they don’t know exactly how many days and hours of FMLA they have left.)
Successful management of FMLA is very much about careful attention to forms and schedules. In today’s Advisor, Caraway offers tips for getting it right.
Caraway is a member of Miller & Martin PLLC in Chattanooga, Tennessee. Her remarks came at BLR’s Advanced Employment Issues Symposium, held recently in Nashville.
FMLA Documentation
Some FMLA conversations can be oral, but most need to be documented. For example, Caraway says, If an employee asks, “Am I eligible for FMLA leave?” you can respond orally; but if the person requests leave, you respond with documentation.
You may request, as appropriate:
- Adoption/Foster Care/ Birth Documentation. There’s no DOL form for this, Caraway says, because this is not a medical request, it’s a request for a report of a legal proceeding.
- Exigency documentation. Qualifying exigency statement and supporting documentation or DOL form WH-384
- Medical Certification. DOL Medical Certification form, regular (WH-380) or military (WH-385)
You will also use the following forms:
- Notice. DOL Notice of Eligibility and Rights & Responsibilities form (WH-381), attach to WH-380.
- GINA Disclosure attachment. (Technically, Caraway says, this is only required when the employee is requesting leave for his or her own medical condition. The statement will generally provide a safe harbor in the event that the medical professional reveals genetic information.)
FMLA changes—the #1 hassle of 2010, and likely of 2011. BLR’s compliance guide is ready to help now. Click here to find out more about the Family and Medical Leave Act Compliance Guide.
Who Can Complete Certifications?
Who can complete an FMLA medical Certification form? It’s a long list, says Caraway. First, doctors of medicine or osteopathy authorized to practice medicine or surgery by the state in which the doctor practices and the following state-licensed professionals:
- Podiatrists
- Dentists
- Clinical psychologists
- Clinical social workers
- Optometrists
- Chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-rays to exists)
- Nurse practitioners
- Nurse-midwives
- Physicians’ Assistants (if functioning within the scope of their licensed practice)
- Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts
- Any other health care provider recognized by the employer or the employer’s group health plan benefits manager
- Also, any of those listed above who practice in other countries, if they are authorized to practice in accordance with the law of that country and are performing within the scope of their practice as defined by such law.
Can You Push Back Against Doctors?
You can push back if forms are incomplete or unclear, Caraway says. Generally, do not accept “unknowns,” she adds. (Duration and frequency “unknown.”) If you accept “unknowns,” and especially if you accept them because you do not want to bother the employee or the doctor, then you’re at fault when things spin out of control.
Remember, says Caraway, the regulations do clearly put the onus on the employee to provide a complete and clear form. If the employee doesn’t do that, you may deny leave.
Also check the form for internal consistency and be sure that an authorized person signed the form.
You can contact the health care provider directly as long as:
- You “clarify” and “authenticate” only; no requests for “additional information”
- No direct supervisor contact
- Give the employee a chance (and 7 calendar days) to “fix” the form (notify the employee in writing and indicate in writing what needs to be done to make the form acceptable)
- Execute a HIPAA release if required by health care provider.
Remember, warns Caraway, this point in the FMLA proceedings is your first and last chance to use second and third opinions for 12 months.
A whirlwind of changes has hit the FMLA—are you ready to comply? Order BLR’s comprehensive guidebook and find out what you need to do. You’ll get expert FMLA guidance, forms, and concrete examples. Find out more.
When Provider and Ailment Don’t Match
You can also push back, says Caraway, if the provider and the condition don’t match. For example, if the OB-GYN is certifying migraines or the podiatrist is certifying depression.
In tomorrow’s Advisor, more tips on managing FMLA, plus an introduction to the guide they’re calling “The FMLA Bible.”
“Migraine people, says attorney Stacie Caraway, may have terrible headaches, but never so bad that they don’t know exactly how many days and hours of FMLA they have left.” This seems like the kind of attitude that could open an employer up to charges of disability discrimination. I’m surprised an attorney would use the term “migraine people.”
I agree with the previous comment. It’s a real disconnect when pro employer attorney’s make determinations based on non experience. I wonder how this attorney will respond if and when FMLA leave becomes a very necessary part of her employment life?
Let’s say her need for leave involves an aliment germane to women which requires her to utilize extensive leave time. Then she gets wind of being referred to as the “OB (GYN) babe” by her male attorney associates. Hmmm… will she start thinking about sexual harassment or gender discrimination? At the very least there should be a healthy dose of sensitivity awareness and respect for employees requesting FMLA. This should be the attitude regardless of whether you believe some are gaming or seeking to game the system.
When negative and demeaning labels are used to “brand” it inevitably leads to demonizing the entire process. Which is usually the intent of corporate employers anyway.
What can you do when the provider and the condition does not match?
Where is the supported in the DOL/ FMLA regulations?
Attorney Stacie Caraway is ignorant, as is HR Daily Advisor for using her quote. “Migraine people?” How discriminating……How improper! Individuals whom suffer from migrains – the key word here being SUFFER.
I am a Perioperative Nurse in Boston, MA and I have been afflicted with “Migraines” since the age of twelve. A migraine is a
complex neurological storm of the brain that translates “normal” stimuli into noxious ones. They affect cognition, distubance of sight, hearing and a host of other physiological responses. To call these people “Migraine People” is the height of discrimination imbedded within the guise of “Human Resources”. I can only hope one day that Caraway or someone she loves gets to experience this brainstorm severely learn to not be so arrogant about this disorder and instead have a human response.