wife has "severe anxiety"
cowboyup2
6 Posts
We have an employee that has a wife with severe anxiety. He has missed work off and on for a month and a half. Her doctor would not release any info on her as to the problem initially. The employee then just went home to care for her. At my attorneys advice, I sent a letter to him, 10 days later, telling him that in order to look at FMLA for him I would need a Doctors statement indicating the seriousness of the problem to see if his situation would qualify for FMLA. I received a form back that states that the employees wife has severe anxiety and needs care. Duration is unknown and frequency is unknown. I sent the response to my attorney. My question is, is severe anxiety a covered item? With no parameters for duration and frequency how does a company respond/handle this? I can't put the employee on a schedule or know how long he can be here any given day? Advice?
Comments
You may request a second opinion and even a third to break a tie.
I would count all the days missed toward the 12 weeks and toward the end of that period, I would send a certified letter explaining that leave will be over on a date certain. If you allow leave extensions, I would include that in the letter. In any case, if he does not respond or come to work at the end of the leave, you will be able to terminate and move on.
The guy is probably overwhelmed with the situation, I know I would be if my wife were having these sorts of issues. All I would think about is getting her better.
The DOL interprets "medically necessary" as meaning that there must be "a medical need for leave and it must be that such medical need can be best accommodated through an intermittent or reduced leave schedule" (of course there doesn't seem to be any official guidance on what constitutes a "medical need," but I suppose that would be part of the doctor's analysis included on the FMLA certification forms s/he completes). Employees have an obligation to try to schedule their intermittent leave in a way that is not disruptive to the employer's operations where possible (ha). Employers can, however, temporarily assign an employee on intermittent leave to an alternative position with equivalent pay and benefits that better accommodates the employee's intermittent leave schedule. Don't know if that's an option for you, but it might be something to consider.
FMLA is granted on the basis that the employee needs leave and will return to work. If the employee can't state that they are planning on coming back, no leave (just termination). When you are getting clarification on the certification you should probably get clarification on the returning to work part too.
Good luck!
Nae
I felt, and still do, that the statement should be clarified with the employee. If he is not returning to work, then no leave (and no need for stressing over what to do). Clarify it first.
Nae
Section 825.309(b):
"If an employee gives unequivocal notice of intent not to return to work, the employer's obligations under FMLA to maintain health benefits (subject to COBRA requirements) and to restore the employee cease. However, these obligations continue if an employee indicates he or she may be unable to return to work but expresses a continuing desire to do so."
So as you can see, it is only where the employee gives *unequivocal* notice that he won't be returning that the employer doesn't have to grant the leave (i.e., there is no question that the employee has no desire whatsoever to return to his job, no matter what.). And even where the employee says he may be unable to return to work (i.e., "He does not know when he will be back or if he will be"), the employer must grant the leave. In Cowboyup2's case, there doesn't seem to be any indication that the employee definitely will not return no matter what. Any attempt to clarify with the employee will likely get the same response, that he wants to keep his job, but doesn't yet know if he'll be able to. Even if that's the most clarification Cowboyup gets from the employee, the employee must get his FMLA leave.