Last week we met Carl the Cashier, at Splendiferous Supermarket, who has been taking intermittent FMLA so that he can received needed care, following his diagnosis of and surgery for cancer. (Click here for review.) Unfortunately, Carl is not having an easy time of it. Betty the Boss, Sally Supervisor and Harry the Human Resources Director are, thankfully trying to make sure they do right by Carl, and are willing to let the rest of us learn from their questions as well. Let’s take advantage of that opportunity– after the jump…
Q: Pardon me, but you said last week that if Carl does not exhaust all his FMLA leave time within a twelve-month period that Splendiferous cannot make Carl re-request FMLA leave time at any time during those 12 months — even if later on in that 12-month period he would not have worked at least 1250 hours within the preceding 12 months. But federal regulations say that employers can ask for re-certification every 6 months for chronic cases. That sounds like a contradiction.
A. Be careful here–and sorry if my answer in the last post was confusing. There is an important distinction between re-requests and re-certifications. In the first case, we are talking about someone with an ongoing condition, who has already provided a certification, and, either continues to have the same condition, or develops another condition that may or may not be related to the original condition. In our example, Carl developed pneumonia. If the pneumonia can be shown to be related to or have arisen from the cancer, then Splendiferous cannot make Carl submit a new FMLA request and submit to a new FMLA eligibility determination based on the pneumonia. Splendiferous can request a new certification every six months as to the continuing need for intermittent FMLA–and can seek clarification of that new certification. If Carl’s doctor certifies that Carl still needs intermittent FMLA, then, Carl is entitled to continue on intermittent FMLA until he exhausts his time, or, according to some courts, after the expiration of the 12-month period, when it can require a new request. If, after the expiration of the twelve-month period, Carl submits a new request, he might not be eligible if he has not worked at least 1250 hours in the last 12 months. Again, be careful though, Carl might be protected under the ADA/ADAAA — if he can show that intermittent leave time is a reasonable accommodation. What is “reasonable” depends on the specific circumstances, however.
Q. Would Carl have to be certified for the entire year (from commencement of his leave) or does it depend on what the doctor writes in the certification, or is it up to Splendiferous?
A. Splendiferous as the employer gets to decide what information or evidence it needs to justify its employee’s entitlement to FMLA leave. Employers do not have to require any health care provider certification. Employers should do so as a best practice, however, both to help minimize the risk of FMLA abuse, and because it may also be helpful documentation in defending against any allegations of FMLA interference or retaliation. The certification should reflect the need for intermittent FMLA, if applicable, how long and to what extent intermittent leave will be required and any other relevant information. That does not mean that a certification will always run for a year. If Carl’s doctor states in the certification that the projected time frame is four months, then the certification runs for 4 months, rather than 12. After those 4 months Splendiferous can require a re-certification if Carl feels he needs an extension.
Q. Suppose Carl’s wife and son also work at Splendiferous and they have both applied for and been approved for intermittent FMLA to take care of Carl. Suppose further that Splendiferous has reason to believe that Carl’s son may not really be using that time to take care of Carl. Does Splendiferous have to require Carl’s wife and son to provide documentation of the need to be out, or can they just require of the son.
A. While the regulations do not specifically address this situation, they do contemplate the possibility that an employee might abuse FMLA leave time and they do allow employers to take reasonable steps to address such a situation. That said, it certainly seems that it would be reasonable for Splendiferous to require proof of the son, who they do suspect may be abusing intermittent FMLA leave time, without requiring the wife to submit such proof.
Q. What if after chemotherapy treatments, Carl does not go home, but, his wife, who is driving him, makes some stops to run some errands on the way home? If Carl can be out accompanying his wife on errands, does he really need the time off work? Alternatively, what if Carl during a day that follows chemotherapy, goes for a massage? Is that a valid use of intermittent FMLA leave time?
A. Courts have allowed some leeway here. Employees need not be completely incapacitated to be eligible for intermittent FMLA leave time. It is enough that the condition in question may preclude them from showing up to and performing their jobs. Similarly the fact that an employee does not go right home after a medical treatment does not necessarily mean that s/he is abusing his or her FMLA time. As for the massage, perhaps the massage helps relieve certain symptoms Carl is experiencing–and, again, the fact that Carl can lie on a table and receive a massage, does not mean that he is not sick and/or is able to perform his job.
As you can see, Carl’s situation can raise a lot of questions for his supervisor and Splendiferous’ H.R. people. That is why Splendiferous and all other employers in a similar position should speak not only with their H.R. Department and in-house counsel, if any, but should also have competent outside employment counsel on their speed dial.
OK, well we’re going to say goodbye to Carl for now and wish him good luck and a speed and full recovery. For any of you with a unionized or partly unionized workforce, join The EmpLAWyerologist next week, when we look at how FMLA and collective bargaining impact each other. See you then!
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent employment counsel on any issues discussed here.
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