FMLA and Intermittent Leave

mets · October 2002

We have an individual on intermittent FMLA leave, working part-time 3 days per week. We have required a second opinion and have directed him to our EAP services for referral to a medical provider who we have no knowledge or ties to. The condition is anxiety and has been diagnosed by his medical doctor and classified as qualifying under FMLA. The employee has had a part-time leave in 3 of the past 4 years, at approximately the same time of year. The employee is now stating that he will not comply with the second opinion because our EAP has refused to allow him to be examined with his attorney present, as he wishes. Our Dept. of Labor rep has suggested we suspend the part-time priviledges, as he is not acting in good faith.
Anyone have any idea if the employee has a right to include his attorney in the exam? It is obvious that the employee is just providing barriers here, and not wanting to comply. By the way, he originally sought a leave to care for his mother, but the mother's physician would not certify that the conditition was a serious medical condition, so he then filed the leave for himself.
Thanks

Hatchetman · October 2002

[font size="1" color="#FF0000"]LAST EDITED ON 10-25-02 AT 09:16AM (CST)[/font][p]I suspect that there is no definitive FMLA answer for you other than what may be the right of any individual to have an attorney present during any physical examination.

I doubt that the examining doctor would want the attorney to be physically present in the examination room. I think the presence of another party, especially an attorney or non-physician, would have a cooling affect on the interaction that would need to take place between the examining physician and the employee. After all, there are questions the physician will ask the employee, who may be advised not to answer or to say the answer in a particular manner by the attorney because it could affect the ultimate assessment by the physician.

Has the employee explained why he wants the attorney present? Of course, maybe the ulitmate decision has to be given by the physician.

mets · October 2002

Thanks, Hatchetman- I think this situation is similar to the post from prscello on 10/25- that intermittent leave is difficult to administer. As far as my situation goes, I am not sure if the employee has a right to include their attorney in second opinion examinations as allowed for by the FMLA. There certainly isn't any provisions for this in the FMLA language. I believe that the employee is just thinking that there is a possibility that the provider will not concur with the attending physician's diagnosis.
Thanks again.

Don D · October 2002

The question is not one peculiar to the FMLA. I feel that the question is universal and may need an attorney's answer on the Forum. The same would apply if an applicant wanted an attorney to be present at a company required pre-employment physical. I think the answer would be the same one as to the request an applicant might have for his attorney to be present at the job interview. The answer to that of course is NO. I'm sure you'd have an awfully difficult, if not impossible, time finding any physician who'd go along with the request. They don't need the $300 that badly.

mets · October 2002

You make a good point Don D.
Thanks

Theresa Gegen TX · October 2002

I believe that you should ask the employee to have his attorney provide some legal authority for his request (make him do the work).

I would tell the employee that you have checked the regs and talked to the DOL and have come to the conclusion that he does not have a right to have an attorney present. Then tell the employee that if he has authority to the contrary, you will consider it. I am almost sure that he will not be able to come up with any authority. But if he does, you can then consider it.(I have had this come up in a lawsuit when doing an independant medical exam, and I can tell you that no dr will agree to having a lawyer present).

Good Luck!

mets · October 2002

Thanks Theresa. I wouldn't think there would be many physicians who would want to subject themselves to scrutiny from an attorney during a medical exam. believe there are probably instances where an employee might be allowed to have an attorney present during a medical exam, possibly in a liability or even workers comp matter, but I am not sure.
Yesterday, fortunately the employee's attorney persuaded the employee to comply with our request and be examined alone. Unfortunately, we probably will get stonewalled again if the second opinion conflicts with the first diagnosis. The third opinion then has to be scheduled with a mutually agreed upon provider.
I think the employee may have thought that we would finally give in rather than keep pursuing.
Thanks again.

mets · November 2002

Well, our employee on intermittent leave decided that since we weren't going to tire of this situation and just allow the time off w/out further medical documentation, he must comply with our requirement of a second opinion. The provider of this second opinion really didn't dispute whether he had an anxiety condition, but emphasized that it wasn't at a level that should interfere with the ability to work productively on a full-time basis. Now we are at the third and final examination stage. By FMLA law, we have to agree on a third provider. It is our intent that he must now be examined by a psychiatrist, since the first opinion was from his medical doctor and the second came from a certified social worker. A psychiatrist is both a medical and mental health professional who should be able to offer a qualified and binding decision. Now the process begins as to who to agree on. If the employee doesn't agree to go to a psychiatrist, our Dept. of Labor rep says we can suspend the intermittent leave on the basis that the emp'ee isn't acting in good faith.
I hope no one else is going through a situation like this.

Don D · November 2002

I applaud you for having the 'fortitude' (we call it something else down here) to stick to your guns on this one and not cave at the mere mention of attorneys or other suggestions from the ee. It may come down ultimately either way; but you'll have known you went through the right process.

mets · November 2002

Don D
I guess fortitude is as good a word as can be printed here. It is very frustrating to say the least. You're right, all this work and it may get us no where- if the next provider says that it is legit that he work on a part-time basis- we lose-but at least we will have made him earn the time- and either way, it will bring some closure to this matter.
Thanks

FMLA and Intermittent Leave

Comments