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Advocate’s View: A look at employee requests for leaves of absence

Laurie A. Giordano

Laurie A. Giordano

This is part 1 of a 2-part column. The second part will be published in Friday’s edition.

Employee requests for medical leaves of absence or accommodations to perform essential functions of a position often raise various issues of which both the employee and employer should be aware. This article focuses on various rights and obligations under such circumstances. Specifically, this article addresses what information an employee should provide to substantiate the request(s), when an employer can contact an employee’s medical provider, when an employee can be required to submit to a medical examination, the scope of permissible inquiry under disability discrimination statutes and other privacy issues.

When an employee requests leave or an accommodation, it is his or her responsibility to provide proper medical documentation and/or certification to support the request. The Family and Medical Leave Act is a compilation of federal statutes and regulations allowing up to 12 weeks of unpaid leave for a “serious health condition.” The FMLA governs employers with 50 or more employees for each working day during each of 20 or more calendar work weeks in the current or proceeding calendar year, 29 C.F.R. §825.400.

A “serious health condition” under the FMLA is defined as illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.

The “continuing treatment” test for a serious health condition under the regulations may be met through: 1) a period of incapacity of more than three consecutive, full calendar days plus treatment by a health care provider twice, or once with a continuing regimen of treatment; 2) any period of incapacity related to pregnancy or for prenatal care; 3) any period of incapacity or treatment for a chronic serious health condition; 4) a period of incapacity for permanent or long-term conditions for which treatment may not be effective; or 5) a period of incapacity to receive multiple treatments (including recovery) for restorative surgery, or for a condition which would likely result in an incapacity of more than three consecutive, full calendar days absent medical treatment, 29 C.F.R. § 825.113; and see DOL FAQ Qualifying Reasons for FMLA Leave Responses at: www.dol.gov/whd/fmla/finalrule/NonMilitaryFAQs.pdf.

To qualify for FMLA protection, the employee must work for the covered employer, work 1,250 hours during the 12 months prior to the start of the leave, work at a location where 50 or more employees work at that location or within 75 miles of it, and have worked for the employer for 12 months, 29 C.F.R. § 825.104.

The 12 months of employment are not required to be consecutive. See DOL FAQ Eligibility for FMLA Leave Responses at: www.dol.gov/whd/fmla/finalrule/NonMilitaryFAQs.pdf. With respect to notice, when the leave is foreseeable, an employee must give 30 days notice to his or her employer, 29 C.F.R. § 825.302. If 30 days notice is not possible, an employee is required to provide notice “as soon as practicable,” 29 C.F.R. § 825.302 (a)-(b).

Further, if need for leave is unforeseeable, employees are required to provide notice as soon as practicable under the facts and circumstances. 29 C.F.R. 825.303. The regulations clarify that this is generally within the employer’s usual and customary notice requirements applicable to leave, 29 C.F.R. § 825.303.

When seeking leave for the first time for a FMLA qualifying reason, the employee does not have to specifically assert his or her rights under the FMLA, 29 C.F.R. 825.301 (b). The employee must provide, however, “sufficient information” to establish the qualifying reason for the leave, 29 C.F.R. 825.301 (b).

Depending upon the situation, that may include that a condition renders the employee unable to perform the function of the job, that the employee is pregnant or has been hospitalized overnight, if the leave is due to a qualifying exigency or — if not the employee’s own medical condition — that the family member has a qualifying condition or is unable to perform daily activities and the anticipated duration of the absence, if known.

If the employee is seeking leave for which the employer has already provided FMLA leave, then the employee must reference specifically the qualifying reason for leave or the need for FMLA leave. If the employer needs more information, it should inquire further.

If an employer requests it, an employee is required to provide complete and sufficient medical certification in order to take FMLA-protected leave, 29 C.F.R. 825.305.

However, an employee is not required to give the employer his or her medical records. The medical certification should contain sufficient medical facts to establish that a serious health condition exists, see DOL FAQ Certification of Need for FMLA Leave Responses. With respect to timing, if the employer requires certification then it should ask for it at the time of the request or within five business days, 29 C.F.R. § 825.300 (b). Of further note, an employer may request certification at a later date if there is reason to question the duration of the leave.

With respect to certification, the employer must provide the employee a reasonable opportunity to cure any deficiencies in a medical certification. The deficiencies must be in writing to the employee with specification of what additional information that the employer is seeking. The regulations state that seven calendar days should be given to cure any deficiencies, 29 C.F.R. §825.305 (c). Recertification can be required no more than every 30 days, 29 C.F.R. § 825.308 (a).

If an employer seeks to have contact with an employee’s medical provider, it must comply with the Health Insurance Portability and Accountability Act privacy regulations. Under FMLA and HIPAA, employers may contact an employee’s health care provider for authentication or clarification of the medical certification by using a health care provider, a human resource professional, a leave administrator, or a management official — not the employee’s direct supervisor. A written HIPAA authorization will need to be provided by the employee if individually-identifiable health information is to be provided to the employer.

Notably, an employee does not have to sign a medical information release as part of the FMLA certification process. It is the employee’s responsibility to provide sufficient certification or an authorization to the employer. In some cases, the employee may wish to sign the authorization to ensure that the information will be available to support the certification.

Can a medical examination be required to go out on a leave of absence? No. However, to return to work, an employee that was absent on FMLA leave due to an employee’s own serious health condition may apply a uniform policy or procedure (if in place) requiring all similarly situated employees to submit a certification from the employee’s own health care provider that the employee is able to resume work, 29 C.F.R. §825.312 (a). Failure to submit a properly required fitness to return to work certification could delay reinstatement or he or she may be denied reinstatement, 29 C.F.R. 825.312 (e).

If an employee is unable to work because of a work-related accident and is collecting Workers’ Compensation benefits, he or she may also be using concurrent FMLA leave, see, Stiller, Employment Law in New York § 4:240 (2001). Pregnant employees may have rights under the FMLA (including the right to reinstatement) as well as The Pregnancy Discrimination Act of 1978, 42 U.S.C.A. § 2000e(k).

The act does not mandate a specific time for leave, but provides for equal treatment of pregnant employees as other employees of the company unable to work due to temporary disability.

Laurie A. Giordano is a founding partner of the Rochester litigation law firm of Leclair Korona Giordano Cole LLP. She concentrates her practice in the areas of personal injury, insurance law and commercial litigation. She can be reached at lgiordano@leclairkorona.com or through the firm’s website at www.leclairkorona.com.

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