What Employers Can Learn from Physicians When It Comes to Administering the FMLA

Franczek P.C.
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Earlier this month, I took one for the team.  And I survived. boxing doctor

I had the privilege of presenting to a number of employers and health care providers at the annual “Impairment Without Disability” conference, an event sponsored by Mayo Clinic which brings physicians and employers together to share their common knowledge, experiences and goals, and work together to improve and eliminate unnecessary disability.

I had the wildly *easy* task of explaining to health care providers what employers believe they are doing wrong when it comes to handling and completing FMLA medical certification. Before we had finished, we arm wrestled to a draw, traded head locks, and overturned half the tables in the seminar room.

Rest assured, I got my licks in about how doctors need to do better completing the form, clearly spelling out the medical facts behind a serious health condition and the frequency and duration of such a condition; that they need to timely complete the form (which all too many of them are charging for); and how they need to better communicate with employers where information is required.

But when all was said and done, and all kidding aside, I realized that health care providers have a perspective worth appreciating when it comes to the FMLA. Here’s what I learned in my session with these HCPs:

1.  Despite our cynical employer viewpoint otherwise, health care providers are open to communicating more often with employers (at least more than I had anticipated). During my presentation, I emphasized that reasonable communication with employers about the medical condition, its frequency and duration, and the extent to which the condition impacts the job can go a long way to helping an employer understand what’s going on with the employee. Consequently, employers will be more inclined to work with the employee regarding necessary time off. As a related aside, HCPs also seem to appreciate that a modest amount of time on the phone with the employer sooner rather than later will result in fewer requests for clarification in the future (well, at least the near future!).

2.  HCPs don’t fully understand when they can and can’t talk to an employer about their patient, so employers should be more understanding of the obligation to follow HIPAA. In other words, if the HCP thinks HIPAA applies, we should be prepared to obtain a release from our employee to discuss the matter directly with the physician.   We also must be mindful of the FMLA regulations, which remind us that we are not entitled to information beyond that which is addressed in the medical certification form.

3.  Employers need to do a better job of explaining: a) why they are seeking recertification; and b) the patterns of absenteeism they are observing. You’ve dealt with the Monday/Friday pattern of absences, right? Under the FMLA regulations, employers have the right to submit this pattern to the HCP and ask her/him to confirm whether this pattern is consistent with the employee’s alleged serious health condition and the need for leave. The HCPs complain that, all too often, the employer’s correspondence is incoherent or is ambiguous as to what information it actually is seeking.

My employer friends, this correspondence should be a straightforward piece of cake. And I have noticed that employers and TPAs do not do an adequate job in communicating patterns and asking for information.  I have prepared model letters for employers in precisely these situations, and I trust your employment counsel has done the same. So, if I am not your employment counsel [ahem, why not?], seek out your employment counsel and get a copy of this model. If your attorney doesn’t have model correspondence, find a new one.

4.  Don’t assume that the HCP simply rubber stamps recertification or a “pattern” of absences without having a candid conversation with the patient. Again, our cynical side tells us that the HCP will simply attest to whatever tale the employee concocts. That may very well be the case. But don’t underestimate the candid conversation the HCP is having with their patient about their absence pattern(s).  Although we think it unlikely, a fair number of HCPs are cautioning their employees that their employer is “on to them” and advising them to mind themselves accordingly.  [For those HCPs who are not engaging in these candid conversations with their patients, I strongly encouraged them to do so.]

5.  Remember that HCPs are human and, as a result, they often can’t be precise when it comes to frequency and duration. As employers, we live and breath the frequency and duration noted by the HCP on the certification form. When the employee blows past either frequency or duration, we are eager to blame the employee and their HCP for the injustice.

Keep in mind – the HCP owns no crystal ball, so frequency and duration is a product of the HCP’s best estimate based on his/her medical judgment at that time. Although we’d be willing to beg HCPs to be more specific and accurate on frequency and duration, they often cannot, as the threshold for pain and the timing of a recovery differs for every individual.  Really, when it comes down to it, can any medical professional predict precisely how many migraines his/her patient will suffer from in one month? My friends, we’re talking best educated guess.  Not every HCP is the wise guy who completed this medical certification for one of my clients a few years back, which I share now for a chuckle on hump day.  Note the “probable duration” of the condition:

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Thanks to Jane Ryan and Mayo Clinic and Essentia Health for the invite and the opportunity to understand HCPs’ perspective. All kidding aside, the continued dialogue benefits employers and HCPs alike.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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