FMLA - Chronic Depression

System

Hi there,

I understand that Chronic Depression could be considered a disability under FMLA/ADA, if diagnosed. If we have an employee who has been chronically absent and/or tardy in the past and has recently been diagnosed as having Chronic Depression, what do we have to do to accommodate?

I received FMLA paperwork back from the doctor and it states that the employee will need to go to weekly therapy sessions. This is not a problem because we could schedule this. It also states that he may need to take intermittent time off. My concern is that if we may get calls in the morning saying he cannot come in or will be very late because of his condition, are we required to allow FMLA for this? He has no sick leave and this poses a hardship on the department if we cannot plan for his absences or tardiness. I don't mean to sound heartless; we want to accommodate as best we can but our department depends on having him there.

If you know, would you please share what we are required to do in this situation?

Thanks very much.

R.

LindaS

If the medical certification states that he may need intermittent leave due to his condition, there isn't anything you can do but to allow him to take the time off. Does the medical certification state anything about potential amounts of time? If not, you may ask for some type of estimated amount of time but in all likelihood, with depression the time off requirements may vary.

Would recommend providing him written notification of the approval for his leave, make sure this notification states that he is still required to notify the company in accordance with yout policies and hope for the best. You cannot discipline or otherwise retaliate against him for using this time, either.

If you begin to suspect an abuse, you can require recertification one every 30 days.

Good luck and welcome to the FMLA nightmare of intermittent leave!!

System

Thank you very much for your response, Linda.

Rita

Down_the_Middle

It may be necessary and appropriate to designate this as intermittent FMLA, but hopefully you'll do this after careful consideration. Chronic depression by itself means nothing to FMLA. The med cert should include situations where this condition "incapacitates" the employee and prevents him/her from working. Also, if weekly therapy is the required treatment, then you can arrange for the employee to receive time off for the sessions and be expected to RTW. While not intending to "stump" on this issue, I see soooo many employers accept the medical cert form at face value and would not think to get clarification. Most often the cert form is completed by an office nurse and signed by the MD. We employ more than 500 medical staff members (MD's)and they repeatedly tell me.... "don't expect us to police your FMLA. We fill out the forms on behalf of and in support of our patient. You decide whether it's FMLA or not."
Keep in mind the daily call-in requires the incapacitation of the employee vs not feeling like working today. Good luck w/this one..... Chronic depression is an ugly illness and it can easily get pandemic.

System

Thank you very much for your response.

Would you please clarify that "the daily call-in requires the incapacitation of the employee vs. not feeling like working today?" We got our first call-in today with no explanation other than that the employee would not be coming to work today. I'm sure that the employee is assuming that no explanation is required (based on paperwork received from his doctor). Would you please clarify the requirements of a call-in?

Thank you very much for you assistance with this.

R.

Down_the_Middle

R:
It's hard to clarify via this format, but.....
The employee's daily call-in should not automatically be credited w/FMLA. The employee is obligated to explain the absence and in the course of a conversation it would be determined what the absence is about. If the absence is for intermittent leave, then presumably there would be discussions about needing time off to obtain treatment or recover from treatment. If the absence is simply "I'm not coming in today", our practice is to then determine if the illness is related to their approved FMLA status and we inform the employee accordingly as to whether their absence is an attendance problem. Sometimes the employee is required to see their health provider to help us determine if incapacitation exists. Was the employee unable to perform the essential functions of their job??? I readily admit that we have departments who accept employee call-ins and do not ask appropriate questions to eetermine if FMLA is appropriate. It's a constant challenge to educate and I understand your dilemma.

System

Again, thank you. Very valuable info!
R.

Whirlwind

I agree with Middle overall but I have a slightly different approach based on several difficult experiences with ee's who had severe, chronic depression or bi-polar disorder. This might sound cold or overly pragmatic but here goes: You could spend a lot more time than it would be worth to get a person to demonstrate incapacity for each intermittent absence AND (here's the cold part) sometimes it's better to let these people blow through their FMLA as quickly as possible so that you can go back to applying normal attendance policies that will probably lead to termination.

I heard a news story the other day that only 50% of people who are treated for depression under the best of circumstances will benefit from it enough to recover. In other words, it can be a losing battle, and an ee with debilitating depression might have to look at disability or some other alternative to trying to hold a job.

Down_the_Middle

Right on Whirlwind!!! You're absolutely right.
We've chose to use a more aggressive stance to minimize the number of FMLA's that are in active status. We hover around 50 at any one time, so it's always a challenge. The one problem w/using a softer approach for intermittent (call-ins) is that the employee can flex this muscle 40-50 times per year........

franfields

We have ee's who are on intermittent FMLA with chronic depression. We allow it to run its course because our attorneys advise us we would probably lose in a court of law if we took action against the ee for calling in to say they would be late or absent on a given day.

LindaS

When I approve an employee's FMLA for use the letter I send specifically states that the employee is required to contact the company in accordance with our attendance policy regarding any FMLA qualifying absences. If they do not do that, their absence is treated the same as any other and is assigned points accordingly. So if an EE that has approved FMLA simply calls and states that they will not be in and do not designate the absence as FMLA, it is counted as a regular absence.