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What is a "serious health condition"?
What are the rules regarding "medical certification"? As an HR
practitioner, you will recognize these as two of the most frequently
asked FMLA questions. Here is the support you need for your answers.
1. Is there a precise definition of a "serious health condition"?
2. Inpatient care is readily understood, but what does "continuing
treatment" mean?
3. Is there any indication in the regulations of what is not
considered a serious health condition?
4. What are some examples of serious health conditions, according to
recent court cases and DOL opinions?
5. Under what circumstances may you require a medical certification?
6. What information may be required in the certification?
7. What are the time frames within which you should request medical
certification?
8. What if the employee fails to provide medical certification?
9. Do you have to accept the employee's medical certification as the
final word?
10. Can you require additional medical certifications during the
leave?
The
Family and Medical Leave Act (FMLA)
is at the top of almost everyone's list of difficult employment laws
to administer. The most frequent
questions on our subscriber HR Answerline involve the FMLA and, in
particular, the definition of a serious health condition and the
handling of the medical certification process. In addressing these
two issues, the Editors have analyzed the FMLA statute, the DOL
regulations, and recent court cases to provide some practical
answers to your difficult questions.
[Creating HR Policies or Employee Handbook?]
1. Is there a precise definition of a "serious health condition"?
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No. If you are having trouble determining when an employee has a
serious health condition, you are not alone. Essentially, this
determination is made on a case-by-case basis. The DOL regulations
attempt to define a serious health condition but, judging by the
number of court cases involving this issue, they do not do a very
good job. The FMLA broadly describes a serious health condition as
an illness, injury, impairment, or physical or mental condition that
involves either inpatient care or continuing treatment by a health
care provider.
2. Inpatient care is readily understood, but what does "continuing
treatment" mean?
The term "continuing treatment" is difficult for employers to
interpret. The DOL regulations describe five different scenarios,
including:
-
a period of incapacity of more
than three consecutive calendar days involving two or more
treatments, by or under the orders of a health care provider, or
treatment by a health care provider on at least one occasion that
results in a supervised regimen of continuing treatment (for
example, prescription medications or specialized therapy);
-
pregnancy (including severe
morning sickness) and time needed for prenatal visits;
-
a chronic health condition, such
as asthma, diabetes, or epilepsy;
-
a long-term condition such as
Alzheimer's, a severe stroke, or the terminal stages of a disease;
and
-
restorative surgery after an
accident or other injury, or a condition that is likely to result
in a period of incapacity of more than three consecutive calendar
days if left untreated, such as physical therapy for severe
arthritis or chemotherapy for cancer.
(Note: any period of incapacity
that is the result of pregnancy or a chronic serious health
condition, such as morning sickness or an asthma attack, qualifies
for FMLA leave even if the employee does not receive treatment from
a health care provider or the absence does not last more than three
days.)
3. Is there any indication in the regulations of what is not
considered a serious health condition?
Yes. Conditions that only require taking over-the-counter
medications, such as aspirin and antihistamines, do not qualify. In
addition, the following are not considered serious health
conditions:
-
conditions that require drinking
plenty of fluids or any similar activities that can be initiated
without a visit to a health care provider, unless something more
serious is involved;
-
routine dental problems and
periodontal disease;
-
the common cold, flu (but see
Question 4, below), earache, upset stomach, minor ulcer, and
headache (other than migraine); and
-
cosmetic treatments (such as for
acne or plastic surgery), unless inpatient hospital care is
required or complications develop.
4. What are some examples of serious health conditions, according to
recent court cases and DOL opinions?
The courts and the DOL have found the following medical problems to
be serious health conditions:
-
a peptic ulcer, even though it
caused only short periodic absences, because the employee was
under the continuing treatment of a health care provider and the
condition was chronic (Victorelli v. Shadyside Hospital, 128 F.3d
184 (3rd Cir. 1997));
-
chicken pox, because the
employee received treatment for it twice by a doctor, the doctor
told the employee that he could not work for more than three days,
and he was contagious while on leave (George v. Associated
Stationers, 932 F. Supp. 1012 (N.D. Ohio 1996));
-
various ailments experienced all
at one time, including hyperthyroidism, back pain, sinusitis, high
blood pressure, infected cyst, and depression, although the court
found that no one symptom by itself would qualify (Price v. City
of Fort Wayne, 117 F.3d 1022 (7th Cir. 1997));
-
asthma and migraines could be
serious health conditions even though treatment for the conditions
may be brief (DOL Advisory Opinion, 11/14/95); and
-
the cold or flu may be a serious
health condition, if the individual is incapacitated for more than
three consecutive days and receives continuing treatment by a
health care provider as defined in the regulations (DOL Advisory
Opinion, 12/12/96).
The following generally were not
found to be serious health conditions:
-
food poisoning, since it did not
require inpatient or continuing care (Oswalt v. Sara Lee Corp., 74
F.3d 91 (5th Cir. 1996)); and
-
a neck injury, even though the
employee visited a doctor and attended physical therapy sessions,
since there was no evidence that medical treatment was necessary,
and the employee was not required to be absent for more than three
consecutive days (Haefling v. UPS, 169 F.3d 494 (7th Cir. 1999)).
5. Under what circumstances may you require a medical certification?
You may require a medical certification when employees request leave
for their own serious health condition or the serious health
condition of a parent, spouse, or child. However, you may not
require any type of medical certification for leaves taken to care
for a newborn child or a child that is being placed with the
employee for adoption or foster care.
6. What information may be required in the certification?
The FMLA regulations state that the medical certification must
relate only to the serious health condition that is causing the
current need for leave. In other words, you cannot ask for
information about the person's general health or any other medical
conditions. You may ask (among other things) about the medical facts
that support that there is a serious health condition, when the
condition began, its probable duration (including the duration of
leave time needed), whether leave must be taken intermittently, and
whether the employee is unable to work.
The DOL has published a medical certification form, Form WH-380,
that you may use to obtain medical certification. Although use of
the form is optional, the regulations state that an employer
generally may not require more information than what is asked for in
the sample form. Because of this, you should consider using the
sample form to ensure compliance. Employers that choose to prepare
their own medical certification forms should consult with legal
counsel because the medical certification requirements are so
complex.
7. What are the time frames within which you should request medical
certification?
According to the FMLA regulations, you should request medical
certification at the time the employee asks for leave or within the
next two business days. If the leave is foreseeable, the employee
ordinarily must provide the certification before the leave begins.
If the leave is not foreseeable, certification should be requested
within two business days after the leave begins, and you may require
the employee to provide the certification within 15 calendar days
after the request, or as soon as reasonably possible. You may also
request certification at a later date if you have reason to question
the appropriateness of the leave or its duration.
8. What if the employee fails to provide medical certification?
If the employee does not provide proper medical certification within
the required time period, you may delay the leave until the
certification is provided. If the employee never provides the
certification, he is not considered to be on FMLA leave. However,
you may still have to grant
FMLA leave if the employee has made
diligent, good faith efforts to obtain the medical certification
from the health care provider but has been unable to get it.
9. Do you have to accept the employee's medical certification as the
final word?
If you have some reason to doubt the validity of the certification,
you have two options:
-
Even though you may not request
additional information from the employee's health care provider,
if the employee gives permission, a provider representing the
employer may contact the employee's provider to clarify the
medical certification and verify its authenticity.
-
Alternatively, you may require a
second opinion from an independent health care provider that you
select (but who does not regularly work for the employer). The
employer is responsible for this expense. If the two opinions
conflict, the employer may pay for a third and final binding
medical opinion.
10. Can you require additional medical certifications during the
leave?
Yes. You may require additional medical certifications of the
continuing need for leave, but not more often than every 30 days,
unless extenuating circumstances exist. |
Personnel
Policy Service, Inc.
