“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding Family Medical Leave Act administration. Over the upcoming months, we are going to highlight some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Being too restrictive on what constitutes a serious health condition.

Employers are responsible for determining whether an eligible employee has a serious health condition (“SHC”) under the FMLA.  A SHC entitles eligible employees to FMLA leave.  A SHC often involves “continuing treatment,” which is a period of more than 3 consecutive days of incapacity (remember this is days of incapacity, not absences) coupled with either (a) 2 or more treatments within 30 days of the first day of incapacity, or (b) treatment by a health care provider at least once which results in a regimen of continuing treatment (which can be as simple as a prescription).  However, the definition does not stop there.  Also included in the definition, regardless of how many days the employee is incapacitated:

• inpatient care (an overnight stay in the hospital, a hospice or a residential medical care facility);

• pregnancy or prenatal care (the very fact of pregnancy);

• chronic conditions (only requiring periodic visits at least twice a year for treatment by a health care provider);

• permanent or long-term conditions (any condition for which treatment may not be effective, such as, asthma, diabetes, epilepsy, etc.);

• conditions requiring multiple treatments (multiple restorative surgery, chemotherapy, physical therapy, dialysis, etc.); or

• leave for treatment of substance abuse (as long as inpatient care and continuing treatment prongs are met and treatment is for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider ).

Courts have long opined on the prongs of the serious health condition definition.  For example, one court found that, although the employer argued that an employee’s father did not have a SHC, the father’s depression met the definition under the “continuing treatment” prong of the definition because the father received treatment at least two times over a 7-month period.  Scamihorn v. Gen. Truck Drivers, Local 952, 282 F.3d 1078 (9th Cir. 2002).   In a more recent case, a court found that an “overnight stay” in the hospital means a stay for a “substantial” period of time from one calendar day to the next calendar day, measured by the employee’s time of admission and time of discharge.  Bonkowski v. Oberg Industries, Inc., 787 F.3d 190 (3d Cir. 2015).

As best practice, employers should require employees to submit medical certifications to support FMLA leave, and then carefully review the contents of the certification against the FMLA definition of SHC.  The U.S. Department of Labor medical certification questions track the regulatory definition.  Many employers also utilize the services of a third party administrator for FMLA leaves, who also typically require medical certifications to be submitted supporting the need for leave.  The information contained in the medical certification is critical in making the determination of whether an employee has a SHC under the FMLA.  Comparing the contents of a medical certification with the FMLA SHC definition will result in a more precise analysis.

Part 1 - Common Family Medical Leave Act Mistakes: What Am I Doing Wrong??

Part 2 - Employee Leave Notice: Common Family Medical Leave Act Mistakes, Pt 2

Part 3 - FMLA Equivalent Position: What Am I Doing Wrong? Common FMLA Mistakes

Part 4 - Counting FMLA-Protected Absences: What Am I Doing Wrong?? Common FMLA Mistakes

Part 5 - What Am I Doing Wrong? Common FMLA Mistakes – the California Edition

Part 6 - What Am I Doing Wrong?? Common FMLA Mistakes

Part 7 - Common FMLA Mistakes: In Loco Parentis Relationships: What Am I Doing Wrong??