Step carefully when employees request time off under the Family and Medical Leave Act (FMLA).

The FMLA is a minefield in a number of ways, including how eligibility for leave should be documented. According to the Department of Labor, an employee qualifies for time off under FMLA if a serious condition makes them “unable to perform the function of his or her job,” or “to care for the employee’s spouse, son, daughter, or parent who has a serious health condition,” along with other reasons.

The Labor Department notes in its Employer’s Guide to the FMLA that serious health conditions would include illnesses, injuries, and physical or mental conditions that require inpatient care or continuing treatment by a health care provider.” The Guide also states that the FMLA does not “apply to routine medical examinations, such as a physical, or to common medical conditions, such as an upset stomach, unless complications develop.”

Trust but Verify

You, the employer, may obtain certification of the medical basis for a FMLA leave request. It’s not a streamlined process though. Within five days of learning about an employee’s need to take leave, you need to ask for the certification. The request must be in writing, and must include an official notice of “rights and responsibilities” so everyone is on the same page legally.

In turn, employees are to provide you with the medical certification within 15 calendar days. Note, they may have a little grace period if a good faith effort was made to meet the deadline and failed, but they are not entitled to leave between the passed deadline and receipt of the certification.

The list of detailed requirements for the medical certification includes:

• Contact information for the health care provider and type of medical practice or specialty,
• When the serious health condition began,
• How long it’s expected to last,
• If the patient is the employee, whether they are unable to work, and the likely duration of this inability,
• Whether the need for leave is continuous or intermittent, and
• Appropriate medical facts about the condition.

What’s Off Limits?

That last requirement raises the question: So what medical facts are you entitled to?

This is where trouble can occur if you are too inquisitive. First, remember that any medical information you get must not be shared with an employee’s front-line supervisor unless, of course, that’s you. Your HR manager, should you have one, will have the information, but it shouldn’t be mixed with regular employee files.

What are appropriate medical facts? They may including information about:

• Doctor visits,
• Patient symptoms, or
• A diagnosis.

The health care provider may provide a diagnosis at their discretion but, the Department of Labor says an “employer may not reject a complete and sufficient certification because it lacks a diagnosis.”

To illustrate how important it is to not be overly inquisitive about employees’ health conditions, there is a recent ruling by a federal appeals court upholding a $400,000 penalty. The case was actually filed under the Americans with Disabilities Act (ADA), not the Family Medical Leave Act, but the same concept applies.

Details of the Case

In short, a laborer filed a back injury-related workers’ compensation claim and his employer requested a medical examination. The purpose appeared to be benign: To determine whether the employee’s injury was such that he’d incur further injury if he kept his current position after returning to work. However, the employer went too far.

Specifically, the scope of the medical injury was broad and discovered that the employee had been treated for cancer. Having learned that, the employer had the employee’s bone density tested, hypothesizing that had the cancer treatment made his bone brittle, that condition would increase the risk of a future on the job injury.

The story might have ended there but the employer then terminated the employee, triggering an ADA violation claim. The trial court jury awarded $400,000 to the employee, upheld on appeal, including nearly $300,000 for the employee’s “non-economic” damages—“pain and suffering.”

One factor in the appeals court’s upholding of the lower court ruling was its opinion that the employer had gone on a fishing expedition while seeking medical records.

The ADA specifically bars an employer from requiring a medical examination and from asking about the nature and severity of the disability unless “such examination or inquiry is shown to be job-related and consistent with business necessity.” The court’s view was that the cancer-related inquiry went too far. (Bingman v. Baltimore County, 4th Cir, No. 17-1525, Dec. 29, 2017)

The Bottom Line

Employee privacy on health issues is not an area where you want to guess. Even the best employee/employer relationship can be strained and end up in court. Don’t trust your gut when asking about your employees’ health. Instead, read the rules very carefully first or seek the advice of an attorney with expertise in this field.