Watch Out for FMLA Problem Areas

Dealing with Family and Medical Leave Act issues can be confusing and frustrating. If an agency violates an employee’s FMLA rights, it could end up with a grievance or EEO complaint–or even a lawsuit for FMLA Title I employees–on its hands. That’s why it’s so important for management and HR staff to understand their obligations under FMLA, especially in areas that regularly present problems for agencies.

At FDR Training, you can get your toughest FMLA questions answered at today’s session “FMLA With cyberFEDS® and Barbara Haga.” The session will be a tour through the numerous resources cyberFEDS® provides on this often perplexing topic so you know where to go for guidance when you have an FMLA situation to handle.

Here’s a preview of the topics that will be covered.

Coverage and notice issues

Who is and who isn’t covered by FMLA isn’t always clear, especially when it comes to children and spouses. Recent changes in the law have also extended coverage for employees with family members in the military.

Another area of confusion is the scope of an agency’s responsibility to provide employees with notice of their FMLA rights. While Title I of FMLA provides substantial detail on the notice covered agencies must provide, the bulk of federal employees are covered by Title II, which provides little guidance on the notice agencies must provide.

Medical documentation

FMLA provides that an agency may require that a request for leave be supported by certification issued by the health care provider. FMLA’s definition of “healthcare provider” incudes practitioners recognized by the Federal Employees Health Benefits Program who are licensed or certified under federal or state law. This group of health care providers can sometimes raise questions because it could include psychologists, licensed clinical social workers, physician assistants, nurse practitioners and chiropractors. As long as the healthcare provider is certifying something covered by her license or certification, the certificate should be acceptable.

If an agency doubts the validity of medical records, it can require a second and third (and final) opinion at the agency’s expense. Agencies need to make sure that when they request additional opinions, they are doing it in an equitable manner. Otherwise, they may be accused of treating the employee differently than another, which could result in a harassment complaint.

Interaction of FMLA and other types of leave

Title II of FMLA provides eligible employees, in any one-year period, with up to 12 weeks of unpaid leave. Employees can choose to substitute sick and annual leave for leave without pay. Agencies also have the discretion to approve additional LWOP beyond the 12 weeks guaranteed under FMLA under appropriate circumstances.

One potential issue to watch out for is the use of sick leave restriction letters. Leave restriction letters may not be used for sick leave substituted under FMLA.

Discipline for excessive leave

Agencies can’t count FMLA absences when evaluating whether an employee has taken excessive leave. Congress’ intent when enacting FMLA was to provide job security for individuals who needed to be temporarily absent due to a serious medical condition of their own or that of a covered family member. Therefore, the use of FMLA in any calculation to remove an employee is inappropriate.

‘Serious health condition’ issues

Although FMLA defines “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves: 1) inpatient care in a hospital, hospice or residential medical care facility; or 2) continuing treatment by a healthcare provider, questions arise about the term’s application in practice. Issues may come up about whether a condition is serious enough to be considered a serious health condition, whether a temporary condition can be a serious health condition, and whether the condition has to be disclosed in the medical documentation.

Intermittent leave

FMLA leave may be taken intermittently due to a serious health condition if it is medically necessary. In addition, intermittent FMLA leave for new-child purposes may be taken if the employee and the agency agree to it.

However, if an employee is taking FMLA leave intermittently, the agency may place him temporarily in an available alternative position that better accommodates recurring periods of leave. When the employee is done taking intermittent leave, he or she is entitled to be returned to his or her permanent position or an equivalent position.

Christine Bulger
Christine M. Bulger is the legal editor at cyberFEDS.