Legal Lines - Journal of Employee Assistance Vol. 48 no. 1 - 1st Quarter 2018

FAQs about the Family Medical Leave Act

By Robin M. Sheridan, JD, MILR


Employee attendance and performance issues are sometimes rooted in medical issues – either that of the employee or the employee’s family. The protections provided by the federal Family Medical Leave Act can provide the employee time off from work to resolve these issues. But an employee’s rights under FMLA are limited, and FMLA abuse has led employers to heightened scrutiny of leave requests.

The following questions and answers are intended to help EA professionals guide employees to FMLA leave when appropriate so as not to mislead employees or create tension between EA professionals, the employer and/or the employee. 

It’s important to stress that this article addresses the federal FMLA. Many states have their own version of FMLA and/or other statutory protections that may extend additional rights to employees.  

Q: Can an EA professional certify an employee’s need for FMLA?

A: Maybe. A request for FMLA can be certified by a “health care provider,” and according to federal regulations, which includes a clinical social worker and “any health care provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits.”

Q: If the EA professional is permitted to certify, can the employer reject the EA professional’s certification?

A: Not if the request is proper. Employers don’t have discretion to deny proper requests, but they don’t have to approve every request merely because an employee (or provider) says “it’s FMLA.” First, the employee must be eligible for FMLA. This generally means that they have worked for the employer for at least 12 months and worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave.

Second, the employee has to have available leave. An eligible employee has a total of 12 weeks of FMLA per that employer’s FMLA year. An employer may administer FMLA by calendar year, a fixed 12-month period (e.g., fiscal year), a 12-month period measured forward from the first date an employee takes FMLA leave or a rolling 12-month period measured backward.

Therefore, if he or she has already used FMLA time, the employee may not have much, or any, entitlement remaining. Third, the employee must timely submit a complete and sufficient application and certification form. If they don’t, the employer must give the employee a reasonable opportunity to cure the defects and provide a complete and sufficient certification. Failure to provide this information can result in delay and/or denial of the leave request.

Fourth, the request must be for a covered reason:

* The birth of a child or placement of a child with the employee for adoption or foster care;
* To care for a spouse, child or parent who has a serious health condition;
* For a serious health condition that makes the employee unable to perform the essential functions of his or her job; or
* For any qualifying emergency arising out of the fact that a spouse, child or parent is a military member on covered active duty or called to covered active duty status.

An eligible employee may also take up to 26 work weeks of leave during a “single 12-month period” to care for a covered service-member with a serious injury or illness, when the employee is the spouse, son, daughter, parent, or next of kin of the service-member. The “single 12-month period” for military caregiver leave is different from the 12-month period used for other FMLA leave reasons.

Q: Can an EA professional speak with the employer about a client’s FMLA request?

A: Yes, with authorization from your client. The employer may communicate directly with the certifying provider for clarification (e.g., illegible handwriting) and/or to authenticate the certification (i.e., not a forgery). However, when an employer wants to contact the certifying provider, it must be through human resources or administration – the employee’s direct supervisor should not make direct contact with you.   

Q: Can the employer challenge the certification by requiring the client get a second opinion?

A: Yes. The employer can request a second or third opinion about an FMLA certification. If the employer has reason to doubt the validity of a medical certification, it may require the employee to obtain a second opinion at the employer’s expense.

For example, the employer may not believe that the certification states an adequate need for FMLA leave or that the medical condition is a serious health condition as required by the statute. The employer is permitted to designate the provider furnishing the second opinion, but the selected provider may not be employed on a regular basis by the employer. If the second opinion agrees with the original opinion, then the employer may not further challenge the request on that basis.

However, if the second opinion disagrees with the original certification, then the employer is permitted a third opinion. The employer must again pay the costs of the medical exam. The employer and employee must jointly agree on the provider who will provide the third opinion. The opinion of the third provider is final. While awaiting the second (or third) opinion, the employee is provisionally entitled to FMLA leave.

Q:  Other than as certifying provider, are there ways an EA professional can help their client with FMLA?

A: Absolutely. Consider sharing the following tips.

* Give as much notice as possible. In general, the employee must give at least 30 days advance notice of the need to take FMLA leave when s/he knows of the need for leave in advance. If 30 days advance notice is not possible because the situation has changed or the employee does not know exactly when leave will be required, the employee must provide notice as soon as possible and practical. For planned medical treatment, the employee must consult with the employer and try to schedule the appointment at a time that minimizes disruption to the employer.

* Know the employer’s policies. If the employer has a lawful, uniformly applied policy governing outside or supplemental employment, the policy can apply to the employee while on FMLA leave. 

* The employee must call in for absences as required by policy. If the policy requires a call to their supervisor, he/she must call their supervisor. If intermittent leave has been approved, the employee should explain, at each absence, that this absence is part of his/her intermittent FMLA leave. If the employee simply calls “off” or “sick,” the employer has no way of knowing that the absence is covered by FMLA.

This article is educational in nature and is not intended as legal advice. Always consult your legal counsel with specific legal matters. If you have any questions or would like additional information about this topic, please contact: Robin Sheridan at (414) 721-0469 or rsheridan@hallrender.com.

Robin Sheridan is an attorney with Hall, Render, Killian, Health & Lyman, PC, the largest health care-focused law firm in the country. Please visit the Hall Render Blog at http://blogs.hallrender.com/ for more information on topics related to health care law.