May 25, 2018
When employees request time off under the Family and Medical Leave Act (FMLA), employers need to tread carefully.
The FMLA can be a minefield in several ways, including how to document eligibility for leave. In the simple words of the Department of Labor, employees would qualify for time off under the act if a serious condition makes them “unable to perform the functions of his or her job,” or “to care for the employee’s spouse, son, daughter, or parent who has a serious health condition, ” among other reasons.
In its Employer’s Guide to the FMLA, the Labor Department notes that serious health conditions include illnesses, injuries, and physical or mental conditions that require inpatient care or continuing treatment by a health care provider.” It also states that the FMLA doesn’t “apply to routine medical examinations, such as a physical, or to common medical conditions, such as an upset stomach, unless complications develop.”
Trust but Verify
You may obtain certification of the medical basis for a leave request. It’s not a streamlined process, however. FMLA requires that you ask for the certification within five days of learning about an employee’s need to take leave. That request must be in writing, and include an official “rights and responsibilities” notice so that everybody is on the same page legally.
Employees, in turn, need to provide you with the medical certification within 15 calendar days. Technically they have a little grace period if they’ve made a good faith effort to meet the deadline and failed. However, they’re not entitled to leave between the time the deadline passed and the certification is received.
The detailed list of requirements for the medical certification includes:
- Contact information for the health care provider and type of medical practice or specialty
- When the serious health condition began,
- How long it’s expected to last,
- If the employee is the patient, whether he or she is unable to work, and the likely duration of this inability,
- Whether the employee’s need for leave is continuous or intermittent, and
- Appropriate medical facts about the condition.
What’s Off Limits?
That last requirement begs the question: What medical facts are you entitled to?
This is a matter that can get you into trouble if you get too nosy. First, keep in mind that whatever medical information you receive mustn’t be shared with the employee’s front-line supervisor unless, of course, that’s you. Your HR manager, assuming you have one, should have the information, but it shouldn’t be mingled with regular employee files.
What are appropriate medical facts? They may include information on:
- Doctor visits,
- Patient symptoms, or
- A diagnosis.
The health care provider may provide a diagnosis at his or her discretion but, the DOL says an “employer may not reject a complete and sufficient certification because it lacks a diagnosis.”
Illustrating the importance of not being overly inquisitive about employees’ health conditions is a recent ruling by a federal appeals court upholding a $400,000 penalty.The case was filed under the Americans with Disabilities Act (ADA), not the Family Medical Leave Act, but the same principle applies.
Details of the Case
In a nutshell, following a back injury-related workers’ compensation claim by a laborer, his employer requested a medical examination. The basic goal seemed to be benign: To determine whether the employee’s injury was such that he’d be further injured if he maintained his current position after returning to work. However, the employer went overboard.
Specifically, the scope of the medical inquiry was broad and revealed that the employee had been treated for cancer. Upon learning that, the employer had the employee’s bone density tested on the theory that if his bones had been rendered brittle by the cancer treatment, that condition would increase his risk of a future injury on the job.
The story might have ended there, but the employer subsequently terminated the employee, triggering an ADA violation claim. The $400,000 sum awarded by the trial court jury, upheld on appeal, included nearly $300,000 for the employee’s “non-economic” — that is, “pain and suffering” — damages.
A factor in the appeals court’s upholding of the lower court ruling was its opinion that the employer had gone on a fishing expedition while seeking medical records.
The ADA specifically bars an employer from requiring a medical examination and from making inquiries about the nature and severity of the disability unless “such examination or inquiry is shown to be job-related and consistent with business necessity.” The court’s view was that the cancer-related inquiry went too far. (Bingman v. Baltimore County, 4th Cir, No. 17-1525, Dec. 29, 2017)
The Bottom Line
Employee privacy on issues of health is not an area where you want to wing it. Even the best employee/employer relationship can be strained and end up in court. Don’t trust your common sense when making inquiries into your employees’ health. Rather, read the rules very carefully first or seek the advice of an attorney with expertise in this field.