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FMLA

Howdy everyone! 

I'm looking for some clarification here. Under FMLA, during intermittent use, I am under the impression that an employer cannot require a medical note for every absence, as that would essentially be treating each absence as separate FMLA cases.  Am I wrong for thinking this? 

Does anyone have any personal experience in using FMLA leave intermittently? 

Thanks!

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  • Pljohns

    I was on intermit. FMLA for a while and I had to account for every hour that was tied to the FMLA (doctors appointments, out sick etc) and it had to be noted on my time sheet.  My employer didn't require any type of paperwork like a doctors excuse or anything but I always got one in case they ask for it.  What I was told was that the FMLA was for my asthma so everything relating to that issue that caused any time away from work had to be documented and subtracted from the amount of time I was approved for.  It's a pain and for me, all it did was kept them off my back for multiple absences-we had an occurrence system-if you called in, it was a full occurrence-after 3 full occurrences, you got written up.  FMLA protected me from that write up.

  • K8sMom2002

    I've never had to use intermittent FMLA for medical leave, just for extended post-surgical absences. With extended FMLA, I did have to have a doctor's statement (he had to fill out a form and sign it.)

    As Lynn says, FMLA will protect your job for you to a certain extent. Could you discuss this with your HR folks? Or people who have gone through something similar with your organization?

    Some questions to ask your Human Resources person:

    • What is the maximum amount of FMLA time I'm allowed per calendar year, and when does that year start and end?
    • How will my health insurance and other benefits be calculated? (When I took FMLA leave, I was responsible for both the employee contribution and the employer contribution for each day I was out. So I had to pay the company in order to continue having health, disability and life insurance.)
  • CAPuttPutt

    @K8sMom2002 @Pljohns

    Ok, some back story. I already have my medical certification, signed by my doctor, verifying the authenticity of the illness and the anticipated frequency of occurrences (e.g. Illness can occur at any time, but absences can range from 1-5 days, 1-2 times monthly). Other than verifying that my absences coincide with issues documented by my doctor, I don't think my employer can ask for detailed specifics as that would violate HIPPA laws. 

    "The regulations clarify that contact between an employer and an employee’s health care provider must comply with the Health Insurance Portability and Accountability Act (HIPAA) privacy regulations. Under the regulations, employers may contact an employee’s health care provider for authentication or clarification of the medical certification by using a health care provider, a human resource professional, a leave administrator, or a management official. In order to address employee privacy concerns, the regulations makes clear that in no case may the employee’s direct supervisor contact the employee’s health care provider. In order for an employee’s HIPAA-covered health care provider to provide an employer with individually-identifiable health information, the employee will need to provide the health care provider with a written authorization allowing the health care provider to disclose such information to the employer. Employers may not ask the health care provider for additional information beyond that contained on the medical certification form."

    My employer is stating that "I will submit a doctors note anytime I am absent" related to my intermittent leave. We don't always carry our son into the doctor at first; generally we call the pulmonologist, speak with the doctor and begin breathing treatments & the doctor will call in steroids. If he doesn't improve after 2-3 days on steroids, we then carry our son in for a visit. But that requirement, according to my research, is a violation of FMLA regulations…..

    "Intermittent leave under the Family Medical Leave Act (FMLA) ………. an employer has a limited ability to question or control the use of intermittent leave.

    For example, a recent case (which was an issue of first impression in the Ninth Circuit) reminds employers that information from an employee’s medical provider should only come in the form of a medical certification. Specifically, in Oak Harbor Freight Lines, Inc. v. Antti, 2014 U.S. Dist. LEXIS 20203 (D. Or. Feb. 19, 2014), the court held that a company’s policy of requesting a doctor’s note for each intermittent FMLA absence violated the FMLA because the policy directly conflicted with the FMLA’s explicit recertification procedure. The court explained that the policy was in effect treating each absence as a separate period of FMLA leave and essentially requiring employees to reestablish eligibility for each absence."

    Thanks to my husbands job, I do not carry any benefits through my employer. So that eliminates the health insurance aspect of the equation. 

    Additionally, my employer has already violated my sons privacy as they disclosed in an email what my sons illness was, and that email was shared with other employees (who are not in HR).

    At the end of the day, I just want:

    a) to be able to care for our son when he's sick without being harassed (or even threatened with my job) about my being absent from work 

    b) my employer to follow the regulations that were set at the Federal level regarding FMLA

    I get that FMLA is a hassle for employers but it's my right as an employee to be protected from harassment concerning this issue. 

    I'll dismount from my soapbox now…..*sigh* My apologies. I'm a little frustrated and mentally exhausted at the moment. 

  • Jen

    Hugs~  That does sound frustrating.  When dh was first diagnosed with cancer, one of the nurses that worked with his doctors suggested getting a note from the doctor for fmla purposes.  The note would cover intermittent needs over an extended period of time.  At the time, he wasn't sure what his needs would be in terms of time off and/or work from home.  But…the nurse said one note should cover whatever needs might come up in  the future.  Just wanted to share our experience.

    Now..back to your issues…who exactly is asking for a note/documentation each time?  Is it your supervisor?  Is it someone in HR?  I think I'd want to pursue things with HR.

  • CAPuttPutt

    @Jen It's my "personnel department" (aka someone who doesn't hold HR certification) who is telling me I have to provide a note each time. The lady in personnel sent an email to me, CC'd my supervisor and the bookkeeper, stated what my sons illness was and then said I would provide a note for each FMLA absence. 

  • Pljohns

    Oh I would be all over that one-to disclose confidential info to a bookkeeper and supervisor is a HUGE no no.  They had no need to know and it was a privacy violation.  My corp HR told me that the form had to be completed by my physician but that I didn't even have to disclose what the issue was to my boss if I didn't want to-HR is supposed to keep that confidential.

  • K8sMom2002

    Oh, hugs, hugs, hugs … I can see why you're frustrated and mentally exhausted! To me, it doesn't sound like what you're asking for is unreasonable. 

    Could you do what I've had to do for my DD's school? Could you get a letter from the doctor stating that your son's health issues require your intermittent absence from work, and that this note will serve as an excuse for each absence?

    DD's school has a very strict absenteeism policy, and she is required to have a note from a doctor after so many absences. Since my DD has to be out quite a bit, she can hit that number very quickly. We've gone round and round with them about this with her 504 plan, and the school says that they can't budge.

    Like your son, DD doesn't have to go to the doctor for each absence — a lot of times, the doc will tell us not to come in but to follow her care plan at home instead. So having to get a doctor's excuse means NOT following the doctor's orders.  

    To bridge the gap, I drafted a letter for my DD's doctor to review. It stated her general diagnosis (I was comfortable with that), that sometimes she would need to be out but did not require being seen in the doctor's office, and that this letter was to serve as an intermittent excuse. 

    The doctor liked it, made a change or two, put it on his letterhead and signed it. He mailed me a hard copy, emailed me a digital copy and faxed a copy to the school.

    It solved the problem after months of wrangling and us being threatened with truancy court for excessive "unexcused" absences. (Since we couldn't produce a doctor's excuse for each absence beyond the first few that only required a parent's written note.)

    And I'm glad your husband has insurance through his work! That makes things much more doable for you!

  • Jen

    @CAPuttPutt Were you able to work things out with the "personnel department?"

  • K8sMom2002

    @CAPuttPutt, hoping the holidays have been okay so far, and you were able to work something out with your employer's HR.

  • CAPuttPutt

    @K8sMom2002 @Jen

    Thanks y'all! Sorry I've been silent, we've had family in town for the last week I hope you all had a wonderful Thanksgiving as well.

    I ended up having to contact an attorney about the whole situation. After speaking with him, and him assuring me I wasn't doing anything wrong, I stood my ground with my employer (stating that I wouldn't be providing a note for every absence) and as of now they have backed off. My husband and I actually met with the superintendent & personnel yesterday about the HIPPA violation. There was a most insincere apology from them, of course, but our united message was pretty clear….leave our kid out of this. 

    After the meeting I ended up with a most pleasant migraine which carried over to today. It's just now beginning to ease off some. I am to the point that I just don't care anymore….I love my job, I love 99% of the people I work with, and I will give 110% at my job, but the stress and headaches are getting to me. I am just stubborn enough, however that I will not back down, lol 

  • Tiffany F.

    What if you needed to just take a day because your son is sick and you wanted to watch over him and make sure he didn't have a flare up?  That is taking time for family medical leave. That doesn't mean you needed to go to the doctor.  I am unsure here but curious also because I have a young child with asthma.   Perhaps your doctor could write you up a generic note that you could present for those types of days?   

     

    I did find this on the :

    (Q) How often may my employer ask for medical certifications for an on-going serious health condition?

    The regulations allow recertification no more often than every 30 days in connection with an absence by the employee unless the condition will last for more than 30 days. For conditions that are certified as having a minimum duration of more than 30 days, the employer must wait to request a recertification until the specified period has passed, except that in all cases the employer may request recertification every six months in connection with an absence by the employee. The regulations also allow an employer to request recertification in less than 30 days if the employee requests an extension of leave, the circumstances described in the previous certification have changed significantly, or if the employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification.

    Additionally, employers may request a new medical certification each leave year for medical conditions that last longer than one year. Such new medical certifications are subject to second and third opinions.

    Examples:

    Janie takes six weeks of FMLA leave for a cancer operation and treatment and gives her employer a medical certification that states that she will be absent for six weeks. Because her certification covers a six-week absence, her employer cannot ask for a recertification during that time. At the end of the six-week period, Janie asks to take two more weeks of FMLA leave; her employer may properly ask Janie for a recertification for the additional two weeks.

    Joe takes eight weeks of FMLA leave for a back operation and intensive therapy, and gives his employer a medical certification that states that he will be absent for eight weeks. At the end of the eight-week period, Joe tells his employer that he will need to take three days of FMLA leave per month for an indefinite period for additional therapy; his employer may properly request a recertification at that time. Six months later, and in connection with an absence for therapy, the employer may properly ask Joe for another recertification for his need for FMLA leave.

    If you have questions, or you think that your rights under the FMLA may have been violated, you can contact the Wage and Hour Division (WHD) at 1-866-487-9243

    Edited to add link – CRR – 12/01/2017

  • K8sMom2002

    @CAPuttPutt, I'm hoping that migraine has eased off and no more have followed. Have you had to be off any more? I hope you get no more blowback.

  • CAPuttPutt

    @Tiffany F. Tiffany, yes if our son is sick  or appears to be getting sick, I can stay home with him using FMLA just to monitor him and maybe hopefully prevent his asthma complications from getting so bad. That's what FMLA is supposed to be for, caring for a sick family member or yourself. I just call our doctor (pulmonologist or PCP) to document that he's having issues so that I am covered. I don't have to take him in every time, despite what my employer tried to say.

    @K8sMom2002 No, I've not had anymore migraines since then thankfully. Some things have changed or are in the process of changing at my work, and from what I've heard so far, I think it's going to be a good change. Fingers crossed but not getting my hopes up, lol And I've not been pestered or threatened at all since I (we) stood my(our) ground at the meeting with the superintendent. Funny how when you call a bullies bluff, they back off more often than not.