Monday, August 08, 2011

Employees Need to Carefully Provide Enough Medical Info to Employers to Qualify for FMLA Leave.

A Ninth Circuit Court decision clarifies that the employee may be fired for unexcused abences from work even if actually having a "serious medical condition" if the employe fails to provide the employer enough information at the time of requesting the leave.  

In Lewis v. U.S.A. (9th Circ. 2011) 2011 U.S. App. LEXIS 10576, the Court interpreted 5 U.S.C. Sec. 6383(b) to require the employee to obtain and submit not only the treating doctor's diagnosis, and statement of need for treatment, incliuding time off from work, but also the specific medical facts that supported the diagnosis.  

I suppose the Court was looking for findings that are the result of tests or examination.  In this case, the diagnosis was "post traumatic stress disorder."  The findings for emotional trauma are not objectively visible by X-ray, but require a trained eye to identify the associated symptoms.

Many disabilities at work are stress related.  This case points out that doctors seen by employees for a "doctor's note" need to write more than  the few scribbles on a notepad that identify the time off needed and the diagnosis.  The doctor will need to state findings of symptoms and behaviors that support his or her decision to take the employee off work.  These might include sleeplessness, anxiety, sudden flashbacks in similar circumstances, lack of concentration, loss of the relationship satisfactions, isolation, over or under eating, negative thinking and tendency to overeact. 

There is a tension between individual privacy, and the employer's right to know sufficient information to understand that the employee qualifies for FMLA leave.  The information must be kept carefully private by the employer, in my opinion, like any information covered by HIPPA.  

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