Common FMLA Violations!
A. FMLA violations cover the entire spectrum of the governing regulation, Title 29 of the CFR, Part 825. However, the most common violations are listed below.
2. Denial, withdrawal, or "not currently approved", FMLA for not abiding to suspense dates that are unreasonable under the circumstances. Although this is also an issue of timeliness, there is no stipulation in the FMLA for suspense dates for different actions. This is a question of what is reasonable, and what is not, given the circumstances.
3. Denial, withdrawal, or "not currently approved", FMLA recertifications when initiated by the employee when they are not incapacitated or receiving active treatment from a physician, ie., continued office visits for treatments, etc. The FMLA distinctly states that the concept of "continued treatments" include, but is not limited to, prescription medications, supportive devices, ie., Oxygen, etc.
4. Denial, withdrawal, or "not currently approved", for FMLA because management determines that a "medical condition" is not a serious health condition when they are not qualified to make such a determination. Even if an employer’s health representative made such a determination, there is no provision for such a determination unless it is part of a third (3rd) opinion. An employer’s health representative cannot act on behalf of the employer in a second opinion.
5. Denial, withdrawal, or "not currently approved", for FMLA recertifications even though management requested such certification, and the denial is without just cause.
6. Denial of FMLA leave in general when the statutes do not allow a denial under most circumstances.
7. Withdrawal of FMLA, once certified, when the statutes do not allow a withdrawal of FMLA leave, or FMLA protected status once the certification process is completed, and in favor of the employee.
8. Harassment by requiring repeated "clarification" requests from the employee’s doctor, at the employee’s time and expense, when such clarification is in direct violation of the FMLA statutes. Management may request the employee’s permission that an employer’s designated health care representative contact the employee’s doctor for the purposes of clarification. The employee is not obligated to grant this permission. If the permission is not granted, the employer has another avenue to address the issue of clarification. The employer cannot repeatedly send the employee back to their doctor to obtain clarification. The employer can send the employee back to the doctor if the certification, or recertification, is not complete, but that is the only instance that the employer can make that request. The Employer may send the individual to a 2nd opinion doctor if an employee refuses to allow the employer to contact his/her personal physician, or if the employer believes the FMLA certification is not correct or fraudulent.
9. Initiation of disciplinary action for FMLA related illnesses in direct violation of the FMLA statutes, and The Rehabilitation Act of 1973.
10. Creation of a hostile work atmosphere by repeated violations of the FMLA, The Rehabilitation Act of 1973, and continued harassment of the employee.
11. Prohibiting the use of FMLA based on denials, and withdrawals of FMLA "protected status", or "not currently approved" designation of FMLA "protected status", when such actions are expressly prohibited. FMLA can be denied, or withdrawn, but only in very specific instances. Management does not have "Carte Blanche" authority to take these types of actions without just cause.
12. Denial because information is put on the wrong line.
13. Denial because the employee does not meet the 1250 hour work requirement in the leave year.
14. Denial for cases of intermittent leave for a serious health condition when the requirement for intermittent leave is met on the first absence utilizing the first certification during any leave year.
15. Requesting a "Return to Work" packet in certain instances in violation of the Agency's own regulations, DOL Advisory Opinions, and FMLA regulations.
16. Requesting 2nd opinions for recertifications when such action is specifically prohibited by the FMLA.
17. New (8/03): Requesting that a person return to work on limited duty when requesting FMLA sick leave for a serious health condition that incapacitates the individual.
18. New (2/04): Requesting that a person provide a new certification form because the Doctor's office used a "stamped" signature.
19. New (2/04): Requesting that a person provide a new certification form because the Doctor's signature was illegible.
20. New (7/08): "Make-Up" work for salaried employees. Reference is made to US Court of Appeals for the 7th Circuit, Debra L. Lewis v. School District # 70, et.al., decided April 26, 2008.
B. I am sure that there are more violations that I have not heard about, but the above are the most common violations that the Agency utilizes to deny your FMLA request. If you have had one that is not listed above, please e-mail me at postalflame@mindspring.com
C. Never, ever, change a certification, or add to a certification, after your physician has signed it. This is considered fraud, even with the best of intentions. If the certification is lacking in some aspect, or something is missed, return to your doctor to add the information, or to complete a new certification form. It would behoove all employees to utilize their Union's FMLA forms. They are simpler to understand, and complete, then the Department of Labor's WH-380. Your are not required to utilize the WH-380. It is optional. The APWU, NALC, and NPMHU have their own versions of the FMLA forms for yourself and your family...use them! For all intents and purposes, a specific form need not be utilized. It can just be a statement from the doctor, however, all the required information needs to be in that statement. In that respect, it is simpler to use the Union's forms.
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