Excerpted from New York Employment Law Letter, written by attorneys at the law firm Epstein Becker & Green, P.C. :http://www.HRhero.com/nyemp.shtml?HLe
The FMLA grants employees a certain amount of job security if they need time off because of a serious health condition, among other things. Unfortunately, as with other well-intentioned legislation, there are people who will try to take advantage of the rights granted by the FMLA.
For example, you may have begun to strongly suspect that some of your employees are hiding behind the FMLA as an excuse simply to take off time from work. Perhaps some of your most consistent "three-day weekend" employees use FMLA leave to justify their absences.
Did you ever consider asking for more documentation than they're willing to present? An opinion letter from the U.S. Department of Labor (DOL) clarifies how often you can ask someone to provide recertification of their malady.
Recertification under the FMLA
Under the FMLA, you may require recertification of an employee's serious health condition "on a reasonable basis." The FMLA regulations issued by the DOL generally limit the recertification for chronic or permanent/long-term conditions to no more than once every 30 days when no minimum duration of incapacity is specified in the medical certification.
The DOL has specifically noted that migraine headaches, asthma, and diabetes are examples of chronic or long-term serious health conditions that don't necessarily have a "minimum duration of incapacity." Some of those conditions are recurring and may strike suddenly (e.g., migraine headaches) or vary with the seasons (e.g., asthma).
Because many of you are reluctant to challenge an employee's claim that he's unable to work because of a recurring condition, he can take advantage of the latitude you provide.
According to an opinion issued by the DOL, you need not be skittish about asking for more frequent recertification if you're presented with evidence of employee abuse of FMLA leave.
You are permitted under the DOL's regulations to seek recertification more frequently than once every 30 days if circumstances change significantly or you receive information casting doubt on the continuing validity of the medical certification.
According to the DOL, an employee's pattern of excessive Monday and Friday absences not otherwise supported by medical documentation is precisely the type of information casting doubt on his stated reason for missing work that would justify more frequent inquiry into the medical bona fides of his absence.
Notice to Health-care Provider
The DOL also made clear that the facts underlying the basis for the recertification can be presented squarely to the employee's health-care provider.
For example, you may specifically ask whether the employee's pattern of absences is consistent with her condition. You may also ask whether the likely duration and frequency of her incapacity is limited to Mondays and Fridays.
Because direct contact with an employee's health-care provider is prohibited, it's important to note that your questions must be presented on the certification form or made by your company's health-care provider if the employee gives her consent.
Implications for You
By clarifying your right to assess and challenge an employee's use of FMLA leave, you are better equipped to identify instances of abuse. The right to more frequently require certification of serious health conditions and the ability to exchange information with an employee's health-care provider allow you to react to suspicious patterns of absences and police employees who may be
abusing FMLA leave.
Copyright 2005 M. Lee Smith Publishers LLC. This article is excerpted from *New York Employment Law Letter.* Read more about the print newsletter and the New York attorneys who
write it:http://www.HRhero.com/nyemp.shtml?HLe
This article is an excerpt from NEW YORK EMPLOYMENT LAW LETTER. New York Employment Law Letter does not attempt to offer solutions to individual problems but rather to provide
information about current developments in New York employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.
