Overlapping FMLA Events

Need help on this one. I have an employee that was on approved FMLA leave for grief following the death of her spouse. Her PCP had taken her out for the month of July so she could attend grief counseling and meds could be regulated. He released her to return to work on August 5th.

While on FMLA for her mental condition, she developed back pain. She had indicated that she "was not able to work" (although PCP had released her) and was going to see an Orthopedic Dr. Her PCP said he was going to "step out" and let the Ortho "take over" as to her leave. (The Ortho saw her while she was still in the first FMLA period).

I started a new FMLA event and sent her the WH-380E to have completed. She has seen 2 different Ortho dr's-neither of which has provided an actual statement to take her out of work. The second Dr. has completed the certification (received 8/22) and has NOT indicated a specific period of incapacity (she's been out all month). He also said that she could "do any work that requires no lifting or prolonged standing/walking".

She says the pain has continued despite receiving a coritsone injection on the 21st. She is going back to the Dr tomorrow.

I'm confused on whether or not the doctor needs to define a period of incapacity. It appears he's leaving it up to the EE on whether or not she can come to work. What additional information do I need? Or is this enough to approve? At this point her return date is open ended, should I just consider this as "unscheduled leave" and any time missed for her back pain goes against the remaining hours/weeks that she has after the 1st event?

Any guidance would be appreciated (even if it's that I'm overthinking it.)


  • 2 Comments sorted by Votes Date Added
  • To be "safe," I would return the form to the employee with a letter stating that the certification was deficient and explain exactly where the info is missing. If the doctor isn't saying she's incapacitated during the time requested, I think you can use your regular leave policies. Or, if you believe what she's saying to be true, you can designate it as FMLA leave based on the knowledge that you have...but beware going forward with other employees!
  • Thank you! That's where I was headed (letter to EE for additional info), but thought maybe I was complicating the issue. I have verbally told her my concerns, but as they say "if it's not written down, it didn't happen!".
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