Employment Counseling and Litigation

Verification of FMLA Leave

When an employee takes medical leave, treatment by a healthcare provider is often assumed, and the frequency of doctor’s visits is rarely scrutinized.  However, in evaluating FMLA leave entitlements, verifying the dates of medical treatment can be worth the trouble.  Here is a good example.

The employee in question was a military veteran who suffered from PTSD.  Unfortunately, she also fell victim to a random act of violence when an unknown person fired multiple bullets at her car while she was driving.  She was not injured.  However, that event caused a flare-up of the employee’s PTSD symptoms.  She reportedly had difficulty functioning, experienced irritability, anxiety, stress and loss of concentration, and fear of leaving home.

A year later the employee’s supervisors learned that she had been submitting inaccurate client information for financial reimbursements.  She was given a notice of unsatisfactory work performance.  She was told to remedy the situation and submit needed documentation.  She failed to comply and was counseled further, but her performance issues continued.  The company then received a letter from the employee’s healthcare provider stating that she was being treated for PTSD symptoms and would be able to report back to work on July 7.  The employee did not return to work on July 7, as expected, and remained absent thereafter with only sporadic attendance.  She was ultimately discharged for job abandonment.  The employee sued for interference with her FMLA rights.

The court dismissed the lawsuit after discovery was completed.  Since the employee was never hospitalized and never went through inpatient treatment for the PTSD, she had to show she was receiving “continuing treatment” from a healthcare provider for her chronic health condition. (PTSD can be a chronic condition.)  But under the FMLA regulations, the employee had to show that she received continuing treatment for PTSD at least twice a year.  While she testified that she had been in treatment with her doctor for seven years, and had initially seen the doctor quite regularly, she admitted that her visits had tapered off and were now only on an “as needed basis.”  Thus, the employee failed to establish that she visited a healthcare provider at least twice a year for PTSD.  Therefore, she could not show that she was entitled to FMLA leave.

The bottom line:  When an employee requests FMLA leave for a chronic health condition, take a careful look at the certification form completed by the employee’s healthcare provider.  Does the provider identify a period of hospitalization or identify recent dates of treatment?  Does the provider confirm that the employee will need periodic visits at least twice a year?  If the answer is no, the employee may not qualify for FMLA leave.