Legal Trends

By James B. Thelen May 1, 2008
LIKE SAVE PRINT
Reuse Permissions

HR Magazine, May 2008 An Rx for FMLA Headaches

Medical management isn’t without risks, but it may help with problematic certifications.

Trish Klamert probably had no idea she would be dealing with so many headaches when she got into the field of occupational medicine. Indeed, during the past eight years, that’s the No. 1 condition she has helped employers deal with—HR headaches, that is.

Klamert is an occupational health clinical nurse specialist and manager at the University of Michigan’s Disability Management Division of its MWorks Occupational Health Services in Ann Arbor. As employers grapple with Family and Medical Leave Act (FMLA) leave requests from employees who complain of migraines, back pain or other conditions, Klamert has seen demand multiply several times over for the FMLA certification review and consultation service offered by her division. The FMLA provides employees with an absolute entitlement to unpaid leave, including intermittent leave, as long as the employee meets eligibility requirements and the condition constitutes a “serious health condition” as defined by the law.

Often, employers, and specifically HR staff members, are left with their own headaches as they try to determine whether leave should be granted and how to police the potential for abuse.

A newly proposed FMLA rule from the U.S. Department of Labor (DOL) would change the status quo regarding an employer’s right to contact an employee’s health care provider to question problematic FMLA certifications—but the proposed rule would not change the underlying considerations for doing so. Under both the current and proposed rules, HR professionals may find it advantageous to have problematic certifications reviewed by medical professionals.

When Problems Arise

Though not legally required to do so, many employers use the current DOL model WH-380 form to obtain medical information about whether someone requesting FMLA leave has a serious health condition covered by the law. Updates to the form in the DOL’s proposed rule would require more factual specificity from the employee’s health care provider. Employers are not permitted to require employees to provide more information than requested by the WH-380 form, whether they use the form or not, for the purpose of evaluating the employee’s request for FMLA-covered leave. However, an employer may return an incomplete certification to an employee so that it can be completed.

Legally speaking, under the current rule, the medical certification form is sufficient on its face to entitle the employee to FMLA leave if it provides enough information to show that the employee suffers from a defined serious health condition. Under the proposed rule, a certification form must be “complete” and “sufficient” to entitle the employee to leave. Of course, the employer has recourse to the second- and third-opinion process, which could establish that the leave request doesn’t qualify. Nonetheless, here’s where the HR headache starts. For examples, see “How Serious?” below.

Clarification

Currently, FMLA regulations provide that “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” (29 CFR 825.307(a)). Scant attention has been paid to this provision in the courts, though the few court rulings available suggest that a “health care provider representing the employer” may include a nurse employed by the employer, an outside physician consultant, a contract physician, a registered nurse or physician case managers such as those directed by Klamert in the MWorks program.

The DOL’s proposed rule would change an employer’s legal rights substantially, but perhaps not the underlying basis for outside medical management of FMLA certifications.

First, the definition of “health care provider” would expressly include nurse practitioners, whereas the current regulatory definition does not. Second, and more important for employers, the proposed rule would dispense with the requirement that contact with the employee’s health care provider be only through a health care provider representing the employer. In other words, an employer would be permitted to have direct contact with the employee’s doctor or other defined health care provider, provided that the employer complies with the Health Insurance Portability and Accountability Act. Employers could still choose to make this contact through a representative health care provider, however; they simply would no longer be required to do so.

Under both the current and proposed rules, an employer may deny FMLA leave after receiving a completed certification form even without clarifying or authenticating the submitted certification. Or, as alluded to previously, the employer may choose to seek a second or even third opinion on certification, conceivably providing independent grounds to deny the leave request—or not.

Ultimately, under FMLA regulations, the final decision on whether a leave request qualifies for FMLA protection lies with the employer—not a health care provider representing the employer, and not even the employee’s health care provider. Thus, it is the employer’s conclusion of the adequacy of the certification form that matters, whether or not it chooses to seek further clarification, authentication or opinions.

But that begs the following questions: Do HR professionals, with little or no medical background or training, feel competent or comfortable in denying FMLA leave when they’ve been given a completed certification form? More specifically, do they feel qualified to challenge whether the medical facts provided by the employee’s health care provider are “appropriate” or sufficient to meet the FMLA definition of a serious health condition? Should they seek a second or third opinion, possibly resulting in equally ambiguous certifications?

As noted above, of course, the current regulatory restriction on an employer’s ability to have direct contact with the employee’s certifying health care provider would be dropped if the proposed rule were adopted in its present form. Even without the legal requirement to do so, however, it would seem that the basic premise for using a representative health care provider to clarify questionable certifications remains. That is, as long as HR professionals find it difficult to determine whether a reported health condition qualifies as a serious health condition under the FMLA, there will be a need and a value to an employer’s use of a representative health care provider to clarify certifications. The need to do so for authentication purposes would likely no longer remain, as the proposed rule would clarify that authentication is merely the process of confirming that the employee’s health care provider actually signed or authorized the information provided in the certification.

Define the Relationship

Employers wishing to engage a representative health care provider to spot-check questionable FMLA certifications should consider whether the representative health care provider:

  • Is willing to enter into an independent contractual arrangement to describe the relationship between the parties and their obligations to each other.
  • Will consider an indemnification arrangement of some kind, recognizing that it may undertake actions or provide information or recommendations that subject the employer to legal challenge under the FMLA’s enforcement provisions.

The term, costs and exclusivity of the relationship should be specifically defined. The term of the relationship may be set for a finite period or indefinitely with a cancellation notice period.

For cost, the parties should understand and agree whether the health care provider is to charge on a time or a per-certification basis, and at what rates for the involvement of various types of health care providers.

An exclusivity provision should define whether the employer is obligated to send every certification to the health care provider for review or only select certifications that the employer finds problematic. This provision also should indicate whether the employer may engage with other representative health care providers for the same purpose.

The “contract” need not be extensive—Klamert’s MWorks proposal for this purpose is but a page and covers most of these issues in summary fashion.

How Does This Work?

With the MWorks FMLA certification review and consultation service as an illustration, an employer contracting with a representative provider is likely to have the option of obtaining nurse or physician review of only those FMLA certifications the employer wishes to have clarified, effectively permitting the employer’s HR representatives to control cost.

The cost of the clarification service may increase if communication between the health care provider and the employer establishes that denial of a particular FMLA request for leave could result in discipline or the requesting employee’s termination—for example, if the employer has a points-based attendance policy and the denial of FMLA leave already taken would cause the employee to exceed the number of points allowed, or “point out.” The employer may want to have a licensed physician provide an additional level of review for cases that could result in a legal challenge.

Again with MWorks as illustration, the chief component of an FMLA certification clarification by a representative health care provider is nurse or physician contact with the employee’s health care provider, with the employee’s consent, to obtain the permitted clarification and authentication of the employee’s certification. At MWorks, the consent form provided to employees notes that, without the employee’s consent, MWorks or the employer may not be able to obtain sufficient clarifying information to determine that the employee’s leave request qualifies.

At times, the contact may be question-oriented, with the nurse or physician using his or her medical training and expertise to ask questions raised by an ambiguous certification. Other times, the nurse or physician may provide the employee’s health care provider with additional information about the employee’s job and attendance history to determine whether the employee’s health care provider was aware of such information when preparing the certification.

Sometimes, Klamert says, employees’ health care providers are surprised to learn how much FMLA time off an employee takes based on the more limited certification they thought they were providing.

Ultimately, employers that engage an outside FMLA clarification service look for recommendations regarding whether to grant or deny FMLA leave based on the representative health care provider’s contact with an employee’s health care provider and that provider’s own informed medical judgment of whether the information provided in the certification, as clarified, establishes a serious health condition. Of course, if the representative health care provider is unable to make contact with the employee’s health care provider after several attempts, the failure to obtain additional clarifying or authenticating information would be reported back to the employer, possibly resulting in the employer’s decision to deny the leave request.

Benefits

In one sense, the idea of targeted reviews is not new.

The FMLA’s regulation permitting employer contact with an employee’s health care provider through a representative health care provider has been around since 1995. Many small and mid-size companies have likely avoided the costs associated with regular or even targeted outside reviews, however, and thus have not taken advantage of this opportunity to rein in FMLA abuse. At the same time, the sense of employee entitlement to FMLA leave when a completed certification is turned in may have grown. Many small employers have presumably found the prospect of challenging a doctor’s certification by themselves, without medical expertise to do so, too daunting a task to take on.

Here’s what is new: a trend toward narrowly focused, targeted outside reviews of select ambiguous FMLA certifications.

One Michigan employer, an auto parts manufacturer with 350 employees, saw its monthly FMLA absences drop by more than 50 percent in just the first month of targeted FMLA certification clarifications through a representative health care provider.

Prior to that, it was a rare exception when the company’s HR staff denied a leave request accompanied by a completed FMLA certification. With the security of a representative health care provider’s medical judgments backing them up, however, the company’s HR staff members no doubt were emboldened to deny requests supported by questionable certifications when the representative health care provider’s clarifications suggested that the employees did not suffer from defined serious health conditions.

The happy results for the HR professionals, of course, were fewer unplanned absences, lower indirect costs associated with covering for absent employees and corresponding gains in productivity.

This is not to say there are no risks, however, or that going down this road is bump-free.

In workplaces where a sense of FMLA entitlement exists and certifications have not been challenged, an employer’s launch of targeted certification reviews and periodic denials based on certifications will no doubt lead to outcries from employees and labor representatives. There is also an increased risk of legal challenges when FMLA leave is denied in the face of a certification, particularly when the affected employee is subject to discipline or termination if a leave already taken is not protected by the FMLA.

Nothing on the face of the DOL’s proposed rule changes the underlying value proposition to HR in using an outside medical professional for medical reviews of FMLA certifications.

Because the FMLA is an employee entitlement statute, employers should not be shy about carefully scrutinizing requests for leave. Surveys suggest that too many employers are granting FMLA leave based solely on whether a completed certification is provided. Odds are, they are granting significantly more FMLA-protected leave than what the FMLA actually requires—all to avoid the headache of challenging a completed certification from the employee’s health care provider.

Targeted reviews of questionable FMLA certifications may be just the prescription for these HR headaches.

Editor's Note: This article is not intended as legal advice. For specific situations, consult qualified employment law counsel.

James B. Thelen is an attorney with the Lansing, Mich., office of Detroit-based Miller, Canfield, Paddock and Stone PLC and president of the Society for Human Resource Management affiliate Human Resource Management Association of Mid-Michigan chapter.

Web Extras

SHRM web page:
Workplace Law Focus Area 

SHRM articles:
Expanded FMLA Will Complicate Coordination of Leave
(SHRM Online Workplace Law Focus Area) 

Reconciling the FMLA with State Leave Laws
(Legal Report) 

SHRM survey report:
FMLA and Its Impact on Organizations 

SHRM toolkit:
FMLA and Other Leave


How Serious?

In a recent survey by the Society for Human Resource Management (SHRM), more than half of HR professionals reported that it was “somewhat difficult” or “very difficult” to determine whether a reported health condition qualified as a “serious health condition” under the Family and Medical Leave Act (FMLA). As SHRM notes in its July 2007 survey report FMLA and Its Impact on Organizations, HR professionals regularly question the validity of medical leave certification from health care professionals.

Instances where physicians asked employees how many days they wanted off were cited, as were examples of backdated paperwork, conditions exaggerated to meet qualifications, suggestions for more time off than seemed necessary for the conditions, and an attitude that all illnesses constitute serious health conditions. Overall, nearly 40 percent of HR professionals reported granting FMLA leave for conditions they perceived to be illegitimate, with the number rising to fully two-thirds of respondents in the manufacturing and durable goods industries.

As the SHRM survey suggests, some HR administrators may be granting leave without question upon receipt of a completed certification form because they do not feel qualified to parse through or challenge the “medical-ese” provided by the employee’s health care provider. Over time in such an environment, a workplace culture of FMLA entitlement could take hold, apart from the legitimacy of any one employee’s certification and established health condition.

LIKE SAVE PRINT
Reuse Permissions

MEMBER BENEFITS

CA Resources at Your Fingertips

View all Resources Now

Job Finder

Find an HR Job Near You
Post a Job

SPONSOR OFFERS

Find the Right Vendor for Your HR Needs

SHRM’s HR Vendor Directory contains over 3,200 companies

Search & Connect