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Using case manager for FMLA

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  • Using case manager for FMLA

    I have several employees that I feel abuse FMLA. They know just what to have the doctor write on the FMLA medical form to stay out an extended amount of time. I got to thinking, on cases where an employee is out a long time for FMLA, and the case is questionable, would it be legal to have a nurse case manager communicate with the doctor concerning his/her care and work with that person to get the employee back to work? We utilize this for workers comp and got to wondering if this would be something we could do with FMLA. This case manager would not be an employee of the organization, but a contractor of some sort.

  • #2
    It would probably be seen as interference. What you can do is make sure the FMLA documentation meets standards and that the employee absences are consistent with what is written. What you can also do is have the employee go for a 2nd/3rd opinion at the employer's expense.

    Are they adhering to the company's call-in or request of leave policy? Also make sure they are re-certifying when it changes or at the end of the time period allowed -- and 825.308 does allow the employer to check with the doctor to confirm if absence patterns are consistent with the certification/need.

    All that said, you still have to be careful on retaliation and interference claims. FMLA fraud cases can be very hard to prove and often are employEE-friendly. You always have to ask yourself, would you want to be presenting your side of the case to a jury of the employee's peers?

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    • #3
      One problem I am having is a lot of times the employee misses and is not diagnosed for a long period of time. Then all of a sudden, it was a heart issue or whatever issue and everything should be FMLA. Also, I kept asking for the medical certification form from one employee. He said his Dr. had it. It was over the 15 day limit and when I said it would be denied he presented a letter from the nurse that the form had been sitting on the doctor's desk. I was presented with the form shortly thereafter.

      One individual goes from Dr to Dr having them take him off work, but I still have not heard an exact diagnosis. The last thing I heard was histoplasmosis. It started with cancer, then he thought it was copd and now histoplasmosis. Every doctor has said he needs off work and has had multiple visits and multiple prescriptions.

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      • #4
        The bottom line, for FMLA, is not whether there is a diagnosis. All that matters is whether or not there is a serious health condition as defined by the statute.

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