Seriously? An FMLA Series, Episode 4

Flu season ahead signThe Flu…May or May Not Qualify

Ebola…Always Qualifies

 

 

Anybody who has asked me for FMLA guidance on a sticky case knows that my response almost always includes two phrases: “It depends” and “Stop looking at the diagnosis and get back to the basics of the definition of a serious health condition.” The flu causes both of these statements to be part of the response (and then they roll their eyes and me and wished they hadn’t asked….but you’ll be glad you did).

Over the years I have noticed that most people are wired to practically have made a decision before the end of the sentence and not truly look at the details. Some are filled with empathy, have the big doe-eyes and approve every case they see like they’re managing claims for a box of puppies. Others want to bring down the denied hammer unless they see the employee actually swoon and pass out. Both approaches are equally wrong.

Designating something as FMLA that does not qualify could turn around and bite you for two reasons. First, if you are not following a standard protocol, you are more likely to administer the leave inconsistently among the employee population (if this is you, roll up a newspaper and pop yourself on the nose..BAD!). Any inconsistencies not based in process are just asking for a discrimination lawsuit. Second, if you designate something as FMLA time, but later the employee has a legitimately qualified leave with no time available, it could be argued that the prior time was really a company leave, because it was not a qualified FMLA absence and should not have been designated. You will NOT be able to hide behind the letter you sent that indicated the time was FMLA and the employee accepted it. The employer is responsible in ALL circumstances for designating leave as FMLA-qualifying… When the employer has enough information {825.300(d)}. The employee bears no responsibility for knowing the regulations or knowing that they should have said something. Now your big doe eyes are squinting and thinking about taking this employee to the shelter.

Denying something that may qualify, but you, as the employer, failed to get sufficient information to confirm one way or the other is obviously a risk to the organization and a violation of the FMLA. If this news to you, you are in the wrong industry….just sayin’.

For the sake of the flu only, let’s get back to the absolute basics. We’re talking, don’t forget your FMLA 101.

The Basics:

  • What makes it a serious health condition **?
    • Incapacity to do ones job
    • OR / AND Inpatient care overnight
  • What is ‘Continuing treatment’?
    • Incapacity of more than 3 calendar (not work) days, plus treatment
    • Treatment 2 or more times by a health care provider within 30 days of the first day of incapacity
    • Treatment by a health care provider 1 time that results in a regimen of treatment
    • Treatment that may be initiated without the direction of a physician (bed rest, increased fluids, aspirin) is not by itself ‘continuing treatment.’

Ya, but:

  • “Unless extenuating circumstances exist…” – THIS IS A HUGE ‘Ya, BUT’!!
  • So you say “Hey, they didn’t see the doc in person within the first 7 days..DENIED!” I would have to say “Ya, but…the extenuating circumstance is that the doc told them not to come in because they were vomiting and it was an increased risk of exposure to other patients.” 825.115(a)(3)
  • Then you say “HEY! They didn’t have the treatment that required a doctor to give them for the first 9 days since it was just bed rest and fluids….DENIED!” Once again, I would have to say “Ya, but…on day 9 they went to the ER because of dehydration and were given fluids, so technically they had two visits and legit treatment.”

Yes, Seriously! It is possible for the common flu to qualify. Don’t be complacent and assume anybody with the flu should be denied. You really don’t want to end up having to explain that you just lost a bundle in court because you failed to look at your ‘but’.

** Pregnancy, Chronic Conditions, Conditions requiring multiple treatments are intentionally excluded for the purposes of this blog focused on flu season.