In a webinar presented by BLR titled "FMLA Certification Help: How To Get Info When Employees and Doctors Are Uncooperative," Francine Esposito, Esq., outlined some of the basics of FMLA laws. This article explains what qualifies as a serious health condition, circumstances when FMLA leave can be denied, and how to reduce FMLA abuse.

Part 1 of this article discussed what the law provides, five reasons for taking FMLA leave, and listed the required leave-related forms. The proper use of forms is critical because there might be technical violations of the law if employers are not complying with the very minute details of the administration of these forms. As this can be a violation of the FMLA, we want to be sure that we know what all these forms are and what they're used for.

Serious Health Conditions

We can't really talk about forms and certifications without understanding what a serious health condition is. That's really the whole purpose of the certification: to demonstrate that condition to justify an employee's need for leave. There are six categories that are considered to be serious health conditions, two of which are the most complicated. So, what constitutes a serious health condition? Here are the qualifications:

• Inpatient care: if someone has to spend the night in a hospital or inpatient type facility, there's something seriously wrong.
• Pregnancy/prenatal care: pregnancy in and of itself is considered a serious health condition, even though natural and there's nothing wrong with the person. The physical condition of being pregnant is considered a serious health condition as are all of the doctor's visits that someone needs to go through for prenatal care.
• Permanent or long-term conditions.
• Conditions requiring multiple treatments.
• Incapacity plus continuing treatment by a health care provider (HCP). Incapacity plus treatment is one of the types of serious health conditions that are often abused. To qualify, the incapacity must be for more than 3 consecutive, full calendar days, plus either: 2 or more treatments by an HCP within 30 days of the first day of incapacity unless extenuating circumstances (with the first treatment in first 7 days), or at least one treatment in the first 7 days of incapacity, plus a regimen of continuing treatment under HCP’s supervision. This provision may include potentially minor ailments if they meet the definition.
• Chronic conditions that require at least 2 treatments per year, continue over an extended period of time and may cause episodic rather than continuing incapacity. Examples include asthma, migraine headaches, and high blood pressure.

Denial of FMLA Leave

Armed with all of this information, you may be wondering when FMLA leave can be denied. There are several reasons why this may be appropriate, such as:

• Employee failed to submit complete a sufficient HCP form – whether at all or after they had an opportunity to cure a deficiency on the form
• The medical condition in question was not deemed to meet the definition of a "serious health condition" by the covered HCP
• Intermittent or reduced schedule leave is not deemed “medically necessary”
• Need for leave is unrelated to the serious health condition

Beware FMLA Abuse

A major issue employers face is dealing with potential abuse of FMLA leave by qualified employees. In the webinar, Esposito outlined some guidance for employers on this issue to help employers reduce FMLA leave abuse:

• Ensure leave eligibility/entitlement every time
• Require employees to provide sufficient notice and reason for leave
• Request certification whenever and as often as allowed
• Review all documents very carefully
• Modify job requirements if appropriate
• Ensure consistency of leave with medical certification
• Analyze intermittent leave situations
• Implement and enforce peripheral policies

The above information is excerpted in part from a BLR webinar titled "FMLA Certification Help: How To Get Info When Employees and Doctors Are Uncooperative," with expert Francine Esposito, Esq. To register for a future webinar, visit http://catalog.blr.com/audio.

Attorney Francine Esposito is a partner with Day Pitney LLP (www.daypitney.com). With more than 20 years of experience as a labor and employment practitioner, Ms. Esposito has extensive experience in designing and conducting training for employers on a wide array of employment-related topics, including FMLA, harassment and discrimination awareness, diversity interviewing and hiring, wage and hour compliance, conducting internal investigations, effective documentation, effective employee relations, and union avoidance.