Abuse and Intermittent LOA

kmaries · January 2003

Help!

I have an employee that takes FMLA frequently for migraines. So frequent that out of 20 working days in December she missed 10 days! Usually Fridays and and around the holidays. Her doctor has certified that she would need time off intermittently, but I don't think that this is what he thought she would need off.

I know that I am unable to contact her doctor directly, but is there a way that I can ask him to clarify how many absences he believes she should be taking. I think that if he seen the frequency he too would question what the heck is going on.

Can I write a letter, sent to her of course, that indicates the frequency and ask him to clarify if that many absences are needed? I can say confidently that she is abusing the program. I would like to use a second opinion as a last resort because of the type of organization I work for.

Please help! Intermittent leaves are not my speciality! Thanks in advance for any help!

LindaS · January 2003

I have been in the same situation with employees and unfortunately I haven't found much that can be done regarding this type of abuse. I have spoken with many HR professionals regarding this and the best that I have received is that if you find a consistent pattern you MAY be able to approach the employee but chances are it won't get you anywhere. Migraines are like back problems that have no way to know when they are going to act up so there is no way for her physician to predict how much time she will need off. I'm assuming she is on medication for these migraines and is under a physician's care as well so I highly doubt you will get anything from him/her.

I don't mean to sound so negative but I have been down this road often with employees and I have not found anything that I can do other than accurately track their time and make sure their certifications are updated regularly.

If anyone has any advice on what CAN be done I would greatly appreciate receiving it!!

Margaret Morford · January 2003

You need some legal advice, but I believe you are permitted to request additional information. I think you can ask the doctor (not directly as you pointed out, but through the employee) to estimate how much FMLA the employee will need given their condition. (I would also add this as a question to your standard FMLA Forms.) If the doctor says three days per month, then I'd approach the employee and express your concern that they are missing far more time than the doctor anticipated and that you are concerned that their condition is worsening and that their physician is unaware of it given what the physician had estimated on the form. You want to urge them to go back and see their doctor because they are clearly sicker than their doctor knows. This would be a great time to give them papers to be recertified based on what the doctor believes they may now need intermittently given their changed condition. Keep saying, I want to make sure you have all the protection afforded to you under FMLA. My experience has been that the doctors will fill out that papaerwork about twice before they tell the individual to get back to work.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

dweeks · January 2003

I understand the nightmares of intermittent FMLA leave. Can you offer any advice for a situation involving an employee that was granted intermittent leave to care for her adult, disabled son? He was hospitalized for a short time and she was the primary care giver. He is home now and functioning well but she is in the midst of making arangements to place him in a group home. Can her time for meetings with doctors, social workers, etc. still be considered FMLA for the care of her son? We seem to have a problem with her leaving work frequently if she receives a call from her son's day program that he's having a bad day and she must pick him up, or if there are meetings to arrange the move to a group home. She is under the impression that any time related to her son will be considered FMLA "approved." Her manager would like to request a doctor's note with date and length of time for the appointment for each and every absense. Is this within our rights as an employer??

Terri B · January 2003

I would count anything related to taking car of her son under FMLA. It sounds like she is taking a lot of time, though. How close is she to the 12 weeks if you count all of it?

Abuse and Intermittent LOA

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