Frank, your night custodian, reports that he suffers from Crohn’s disease, a chronic condition that will cause him to miss work when the condition flares up from time to time, including his absence yesterday. Cleaning floors causes him a great deal of stress, which in turn exacerbates his medical condition, and yesterday was one of those days.

On Frank’s FMLA medical certification, his doctor confirms that he will need to have treatment twice per year for the condition, but he also lists only one occasion within the past year when he treated Frank for the condition.

Can you deny Frank’s FMLA leave because he only has treated one time over the past year?  After all, a chronic serious health condition is one which:

Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider. 29 C.F.R. 825.115(c)(1) (my emphasis).

Frank has not racked up two doctor’s visits, so he’s out of luck, right?

What Are the Most Common Approaches?

In my experience, employers and third party administrators tend to handle Frank’s situation in one of two ways, both of which are defensible:

  1.  The conservative approach: A favorite for most employers and TPAs, the conservative approach gives the employee as much time as possible to attend that second visit with the doc.  So, they typically approve FMLA leave in this instance, so long as the employee has another visit with the health care provider within the 12 months ahead.
  2. The moderate approach: Another approach employers take (albeit a less common one) is to wait and see whether the employee has a second visit within the year before granting or denying the FMLA leave. Potentially an administrative mess, the thought behind this approach is that the employer does not yet want to treat the absence as covered or not covered by the FMLA until the employee does or does not have another visit with the doc.

But Can Employers Take An Aggressive Approach?

Here’s a wild idea. Why not take the regulation at face value and enforce it — to obtain FMLA leave, the employee must have visited with a health care provider twice within the year leading up to the certification. Therefore, if the employee’s doc does not list two treatment dates within the previous 12-month period, and the employee is otherwise unable to provide documentation of two visits, FMLA leave is denied.

In taking this approach, employers can rely on the Department of Labor’s own words in the preamble of the 2009 regulations when it endorsed a change to today’s “two visit” rule:

The Department recognizes employers’ concerns regarding requiring only two treatment visits per year, and their desire for some clearer way to assess the seriousness of a chronic health condition, but is concerned that imposing some greater standard could effectively render ineligible many employees who are entitled to the protections of the law.  On the other hand, the Department does not agree with comments from employee groups that because many chronic conditions are stable and require limited treatment, the twice per year standard is unreasonable since that effectively ignores the requirement for ‘periodic’ visits in the current regulations.  The need for two treatment visits per year is a reasonable indicator that the chronic condition is a serious health condition.  The Department believes the requirement for two visits per year thus strikes a reasonable balance between no minimum frequency at all, as supported by many employee groups, or four or more times per year, as suggested by many employer groups, for employees who use FMLA leave for chronic serious health conditions.  Federal Register Volume 73, No. 222 / Monday, November 17, 2008 at page 67948, column 3 (pdf)(my emphasis)

But Jeff, Can You Find Me a Court Case I Can Cite?

I’ve got your back on this one, too. Employers can rely on Lusk v. Virginia Panel Corp., which established that the window you consider for the two visits is the one year period prior to the time the employee needs FMLA leave for the chronic condition.  In Lusk, the plaintiff, Leslie, had not visited with a physician at all in the year leading up to her request for leave for a mental health condition. She argued that, as we might expect she would, the two-visit requirement could be met by treatment that occurred after she took FMLA leave.

The court didn’t buy Leslie’s argument, finding that the critical time period for determining whether a particular condition qualifies for FMLA purposes is the time at which the FMLA leave is requested. Because she did not accumulate two visits in the year leading up to that request, it was no soup for Leslie.

Consider this another tool you can use to confirm an employee’s chronic condition and combat FMLA misuse.

Jeff Nowak is a Partner at the law firm of Franczek Radelet and serves as co-chair of the firm’s Labor and Employment Practice and was named by Law Bulletin Publishing as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012.  Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits.  Jeff is the author of the firm’s highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2014) and was also voted the No. 2 Labor and Employment blog by LexisNexis.

The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.


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