RECURRING HOLIDAY NEED FOR FMLA
Ethel
194 Posts
We have an employee who immigrated to our country. Her family still lies in the country of orgin. For the last three years, this employee has requested 8 weeks FMLA because her father is sick -- (always the same 8 weeks). The employee is very educated and well read and promptly provides documentation from a physician who claims to be the treating physician. We have some issues with this recurring situation, but don't know what to do for this year's annual attack. Any thoughts?
Comments
I, like you, suspect this is all a bunch of hooey. If you were to ask for a second opinion, you would likely get another family friend to write it up. I think you are stuck, unfortunately....This individual could always make the claim that in the home land, those particular days the national health program doesn't provide home health care....yada yada yada...
An employer can use a second party physician to authenticate and validate an FMLA request. Check with your worker's comp carrier for a reputable company that acts as second party physician in these types of cases. This route takes the employer out of the loop of contacting the physician directly. In this case though, I am unsure whether you will need permission to contact the physician as it is not directly the employees medical condition, however, it is usually advisable to get a signed release/approval from the employee to contact the physician certifying the FMLA request.
29 CFR 825.307 - What may an employer do if it questions the adequacy of a medical certification?
(a) If an employee submits a complete certification signed by the health care provider, the employer may not request additional information from the employee's health care provider. However, a health care provider representing the employer may contact the employee's health care provider, with the employee's permission, for purposes of
clarification and authenticity of the medical certification.
(2) An employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second opinion at the employer's expense. Pending receipt of the second(or third) medical opinion, the employee is provisionally entitled to the benefits of the Act, including maintenance of group health benefits.
If the certifications do not ultimately establish the employee's entitlement to FMLA leave, the leave shall not be designated as FMLA leave and may be treated as paid or unpaid leave under the employer's established leave policies. The employer is permitted to designate the health care provider to furnish the second opinion, but the selected
health care provider may not be employed on a regular basis by the employer. See also paragraphs (e) and (f) of this section.
(b) The employer may not regularly contract with or otherwise regularly utilize the services of the health care provider furnishing the second opinion unless the employer is located in an area where access to health care is extremely limited (e.g., a rural area where no
more than one or two doctors practice in the relevant specialty in the vicinity).
(c) If the opinions of the employee's and the employer's designated health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the
employer's expense. This third opinion shall be final and binding. The third health care provider must be designated or approved jointly by the employer and the employee. The employer and the employee must each act in good faith to attempt to reach agreement on whom to select for the third opinion provider. If the employer does not attempt in good faith
to reach agreement, the employer will be bound by the first certification. If the employee does not attempt in good faith to reach
agreement, the employee will be bound by the second certification. For example, an employee who refuses to agree to see a doctor in the
specialty in question may be failing to act in good faith. On the other hand, an employer that refuses to agree to any doctor on a list of specialists in the appropriate field provided by the employee and whom the employee has not previously consulted may be failing to act in good faith.
(d) The employer is required to provide the employee with a copy of
the second and third medical opinions, where applicable, upon request by the employee. Requested copies are to be provided within two business days unless extenuating circumstances prevent such action.
(e) If the employer requires the employee to obtain either a second or third opinion the employer must reimburse an employee or family
member for any reasonable ``out of pocket'' travel expenses incurred to obtain the second and third medical opinions. The employer may not require the employee or family member to travel outside normal commuting distance for purposes of obtaining the second or third medical opinions except in very unusual circumstances.
Good luck.
My $0.02 worth.
DJ The Balloonman