FMLA Questions and Answers – pt 2
By VICKY BROWN
Alright – this week we’re going to finish answering some of the little known, odd, one off questions that come up with FMLA.
My employee asked for FMLA time, so I asked for a note from his doctor. He gave me a note, on prescription paper that said he has to be out until July 12th (8 weeks). This note doesn’t help me – I told him I need much more information than that, I need to know what is wrong (maybe it’s a hangnail!). And it needs to be a much more professional piece of paper than just a piece of a prescription pad. Am I right, or am I right?
Well, while you may be right about a lot of things, you aren’t quite right about this. Under FMLA, your employee isn’t required to give their medical records – however you can ask for sufficient medical facts to establish that a serious health condition exists. However, not so fast – yes, you can ask for a complete and sufficient medical certification, but you cannot, I repeat cannot ask for a diagnosis. So, just be aware of that fine line.
BTW – for me, we provide the Medical Certification form to the physician (we give it to the employee to give to their doctor for completion). That actually takes care of a couple of things – it has a place where the doctor certifies that it’s a serious health condition; and it’s on the official FMLA certification form. And don’t forget to check your state regulations on this too.
Now, if you do feel you absolutely need more information, you can notify the employee that you feel the medical certification is incomplete. But then you are required to state, in writing, what additional information is necessary to make the certification complete and sufficient. And you have to give the employee a reasonable opportunity to get the additional information.
And just a quick pro tip here – you can’t require the employee to sign a medical release of information. Remember, medical information is highly regulated and protected. Tread carefully whenever you are dealing with an employee’s private medical info.
My employee, a salesperson, took 12 weeks of FMLA last year. We recently had a meeting to go over her sales targets for the year – she’s down 20%. As a result, we are putting her on a performance improvement plan, and withholding her bonus. She says that because she was out for part of the year, her targets should be adjusted. What should I do.
Well, in a phrase – I say, adjust her targets.
The FMLA period (which was 25% of the year) could easily explain her numbers. Who was covering for her during her time away, were they doing a sufficient job?
And aside from that – while FMLA regulations don’t require you to adjust your performance standards – it can require that those standards be adjusted to avoid penalizing an employee for being absent during an FMLA protected leave.
Honestly – on the face of it, you should give her a break here. But my advice is to reach out to council before you make a move one way or the other.
“… while you may be right about a lot of things, you aren’t quite right about this. Under FMLA, your employee isn’t required to give their medical records.“
One of my employees just became a new father. He wants to take intermittent leave under FMLA; the schedule he proposes that each week he will tell us if he needs the following Friday or Monday off. That sounds really suspicious to me. What can I do?
Since your employee is taking FMLA for baby bonding, there are stipulations around using intermittent leave. Keep in mind, this may not be the case for other types of FMLA periods. Also, keep in mind that in this case, he isn’t asking for a reduced work schedule – because it’s not set in stone. So, with all that said – he has to take intermittent leave in a minimum of 2 weeks at a time, except on 2 occasions. So, he can do the Friday/Monday thing twice. Then each intermittent leave period has to be 2 weeks or more.
Now, as the employer, you have the ability to allow a reduced work schedule if you wish. But keep in mind, what you do for one, you have to do for all.
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I have an employee on FMLA to deal with her health condition. But my employees keep telling me they see her on Instagram at parties, and traveling. I don’t believe she is really sick. Can I cancel her leave and tell her to get back to work?
While I know the apparent circumstances are really frustrating – you can’t do anything based on information from your employees, or social media. You’ve got to stick with official communication from the employee’s physician. And if their doctor has certified them, well then you have to leave it at that.
Now, under limited circumstances you can request a re-certification. Generally you can ask for a re-certification no less than every 30 days. And if you want one in less than 30 days, it can only be because the employee requests an extension of leave, the circumstances have changed significantly or you receive reason that casts doubt on the stated reason for absence.
If you ask for one, you have to give the employee at least 15 calendar days to get it to you, unless there are extenuating circumstances. So again, tread carefully here – and reach out to council before you move forward.