Must an employer grant FMLA leave to an employee to care for a child’s serious health condition after the child is an adult and no longer lives with the employee? Can an employee take intermittent FMLA leave for baby bonding? What should an employer do who suspects FMLA leave abuse? These questions and more were answered by Charlie Plumb in a recent BLR webinar. Read on for the answers.
 |
HR Tips for FMLA Leave Administration
Q. What is a definition of a serious health condition for FMLA leave?
A.There are six categories of serious health conditions:
- A medical condition that requires overnight hospitalization.
- A condition that requires medical treatment on at least two different occasions after 3 consecutive days of incapacity and a need for a prescription thereafter.
- Any condition that results from pregnancy (it may or may not incapacitate).
- A condition that requires a series of treatments, without which the employee would be incapacitated (such as chemo, dialysis, etc.).
- A chronic health condition with episodic flare-ups.
- Any incapacity due to permanent, terminal, or irreversible conditions (such as strokes or cancer).
The last three are most frequently associated with intermittent leave.
Q. Our employee’s 28-year-old son has Crohn’s disease, and he is occasionally hospitalized for the condition. He does not live with our employee. The employee is requesting intermittent leave under the FMLA to care for her son during these times. Is this normally approved under the FMLA?
A.It can be. Keep in mind that assisting in the medical care of an immediate family member can be the grounds for intermittent medical leave. Since this is her son, this does fall in the immediate family definition. His age does not matter, and whether or not he lives at home does not matter. The key is to get the forms completed properly—have the son’s doctor complete the medical certification. Then review it and confirm whether the condition qualifies and what the details are in terms of the frequency and duration of the incapacitation.
The healthcare provider will also need to affirm that the employee does need to assist in the medical care of their family member. If all of the conditions are met, and the employee is otherwise eligible for FMLA leave, then yes it can be FMLA intermittent leave.
Q. Are you required to look for alternate roles in other departments for temporary accommodations under intermittent leave?
A.I’m going to assume you’re mean a transfer or reassignment when you say alternate roles. If the employee has not exhausted the 12 weeks of FMLA leave, you can only do a transfer or reassignment if the employee’s absences are both planned and temporary in nature.
For example, if an employee is having surgery and will require 6 weeks of physical therapy, the time off needed for the therapy is both planned and temporary. So, it’s acceptable to move the employee to a position that will be less impacted by those absences as long as the pay and benefits are equivalent. On the other hand, if the employee requires intermittent leave for an episodic condition that cannot be predicted, the employer cannot transfer the employee to another position.
Q. If the certification received does not address the frequency and duration of the employee’s flare-ups or treatments beyond the initial period of incapacitation, or if the certification says the frequency or duration is undetermined, how can HR request additional certification?
A.I’d push back in all of those cases. If there’s any incompleteness, ambiguity, or inconsistencies between the sections of the certification, etc., I’d give the employee responsibility to get it corrected and to complete the form and get all of that information. Keep in mind, when you send an employee back to the doctor because of a problem with the certification, look at the form you get from the DOL—you have to specify how it is unsatisfactory. Say whether it is incomplete, ambiguous, etc. The tough one is when the physician says the details are unknown. Some medical conditions are genuinely unknown.
HR Tips for Suspected Abuse of FMLA Leave
Q. How should an employer manage abuse of intermittent FMLA leave? What about when it is used for baby bonding but only around the holidays?
A.One solution is to not allow intermittent leave for birth, adoption, or placement of a child. There’s no medical necessity for intermittent time off in these cases. If you allow it, you’re at the mercy of the employee to decide when they’re taking it for purposes of bonding. The employer is not required to permit intermittent leave for bonding (post birth or adoption/placement.) The advice would be to require them to take FMLA in continuous blocks of time and use it that way.
Q. How should an employer manage potential abuse by an employee with a chronic flare-up condition—especially when the flare-ups seem to often occur on Fridays and Mondays?
A.There are a couple of ways. First, look for a pattern and be sure to look at the absences over a long period of time. If you’ve got that suspicion, look at the records and see the percentages. How often are they Mondays and Fridays? Compare how those absences look versus other employees. Is it significantly higher than most employee absences? Do you have other information that leads you to suspect abuse? Talk to supervisors, especially the direct supervisor. The last resort is to do surveillance. Call them at home, for example, during times they said they need to be home. There’s nothing wrong with checking on an employee during a problem. If there’s no answer, tell the employee—let them know you’re watching and ask for an explanation.
Q. Do you have to verify tips that you receive from other employees or a third-party?
A.I’m going to interpret that as asking whether the employer is required to confirm the credibility of a tip. My answer is that we’re entitled to pursue tips unless we have reason to believe there is bias or hidden agenda. (Perhaps a former spouse or significant other brings the tip). If I get a tip, unless I know it’s not true, I’m entitled to check further. If the tip is true – if someone is abusing FMLA leave and I can prove it – then does it really matter how I found out?
For more information on handling FMLA leave and suspected abuse, order the webinar recording of “HR’s Guide to Leave Management: How to Avoid Legal Headaches When Coordinating FMLA Leave.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Attorney Charlie Plumb represents management in all phases of employment law and labor relations and also serves as leader of McAfee & Taft’s Labor & Employment Group.