Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, September 6, 2013

Answers to Your FMLA Questions: Employer Questioning Medical Information, Second Opinions, Reduced Schedule

In my continuing quest to answer some questions posted in the comments section of some older posts, I'm answering questions today that were posted in Can My Boss Hold My FMLA Against Me?

When Can My Employer Question My Medical Information?
Hello, I found out that I was pregnant on one day, and told my manager on the next day. I found out about the FMLA forms for prenatal care visits and intermittent FMLA that could be taken for complications during pregnancy by a co-worker several days later. I filled out the prenatal care visit form, and was approved for that. I missed a day due to morning sickness that would not allow me to go into work. I called in prior to my shift starting, citing that it was morning sickness, and my midwife filled out the intermittent FMLA form for it. My employer declined it the first time because it was not filled out appropriately. I went in see my midwife a month after that absence and she went over the form with me and filled it out completely, including a referral to a physical therapist for sciatica that has been caused by my pregnancy.
They contacted the day after I turned it in and told me that they couldn't approve it for the following reasons: 1) I had not been seen by a doctor to treat me for severe dehydration due to morning sickness and 2) I had not been prescribed any anti-nausea medication. The physical therapy was also declined because 1) I had not set up any appointments yet (I was waiting until I was approved, so that my job was protected. My company has a very strict attendance policy) and 2) They said that they cannot accept a mere referral from the doctor. My case manager said she would submit it for a peer review. When I hadn't heard anything back from them for a few weeks, I called to see if I could find out the status. I was told that my case manager had made a note in the case (that was not discussed over the phone when we talked a few weeks ago) that the peer review could not take place until I had officially scheduled an appointment for the physical therapy.
I am nervous that if I do schedule the appointment, take the appointment, it may still come back declined, which could potentially leave me with no job. There had been no further contact with me to indicate that they were waiting on action from me. They had also indicated that they could not approve the day I missed for morning sickness because they are unable to approve absence for morning sickness retroactively, and that my doctor would have had to fill out the FMLA form prior to me missing that day and provide a medical statement to prove that the morning sickness was severe enough to warrant FMLA.
I am wondering if this is something employers are able to do? In my reading of the FMLA, incapacity due to severe morning sickness does not have to be confirmed or seen by a doctor. And the fact that my doctor confirmed that I had been having morning sickness for a while before then should have been enough; as well as the fact that the sciatica was placed on the FMLA form as being caused by pregnancy. Are they able to deny my FMLA request due to the reasons that they cited, or am I way off base in my understanding of the FMLA? 
Hi Koifishy. Incapacity due to morning sickness is definitely a FMLA-protected medical condition. A nurse-midwife is a "health care providers" whose medical certification should be accepted under FMLA. The employer can't demand that it be done by a specific type of provider. Here's what the Department of Labor says about acceptable health care providers:
Health care providers who may provide certification of a serious health condition include:
  • doctors of medicine or osteopathy authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices;
  • podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the State and performing within the scope of their practice under State law;
  • nurse practitioners, nurse-midwives, and clinical social workers authorized to practice under State law and performing within the scope of their practice as defined under State law;
  • Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts;
  • any health care provider recognized by the employer or the employer's group health plan's benefits manager; and,
  • a health care provider listed above who practices in a country other than the United States and who is authorized to practice under the laws of that country.
If your employer requests a certification, you are generally supposed to provide it within 15 days of their request. It has to be complete and sufficient and turned in on time. As to the "retroactive" certification, most FMLA certifications have some retroactive aspects. If you're hospitalized for a medical emergency, you obviously can't get a certification in advance of the hospitalization. Same with most illnesses. Normally, the medical practitioner will issue a certification that says the condition started before the certification. Otherwise, how would a certification ever get done? Their claim makes no sense. However, you did wait a month to get the certification. They are supposed to request the certification, so if you didn't get it done within 15 calendar days, that may be what they are talking about.

They're also contradicting themselves. With the referral to a specialist, they're complaining you haven't gone yet. Since you're supposed to give advance notice of the need for FMLA if you can, giving advance notice of a specialist appointment is exactly what you are supposed to do. It sounds like this employer is doing everything they can to interfere with your FMLA rights. FMLA interference is illegal. I suggest talking to an employment lawyer in your state about your rights.

My Company Wants To Send Me To a Doctor For a Second Opinion
My doc just filled out my FMLA paperwork and I received the paperwork back from my company saying I was approved for FMLA and I just received a phone call today saying I have to see a independent evaluation. Can they do that if I have already been approved? Also they said my doc did not give enough information

Hi Peepers. I'm sorry to say that your employer is allowed to ask for a second (and third) opinion. Here's what the Department of Labor says about second opinions:
An employer may, at its own expense, require the employee to obtain a second medical certification from a health care provider. The employer may choose the health care provider for the second opinion, except that in most cases the employer may not regularly contract with or otherwise regularly use the services of the health care provider. If the opinions of the employee's and the employer's designated health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the employer's expense. This third opinion shall be final and binding. The third health care provider must be approved jointly by the employer and the employee.
Do I Need FMLA To Get a Reduced Schedule?
I have chronic insomnia and am on FMLA. Where I work we are on 10 hr. days (5am-3:30pm) 5 days a week. My doctor wants me on 8 hr.days (6:30am-3pm) for several months to see if this different work schedule works. My question, do I have to have accumulative FMLA time to be approved?

Cathy H.
Hi Cathy. You might be able to use FMLA intermittent leave to get a reduced schedule. The other thing you might want to do is ask for an accommodation for your disability under the Americans With Disabilities Act. A reduced schedule could be something your employer would have to accommodate. In order to deny the accommodation, they'd need to show that accommodating you would be an undue hardship. That would depend on your job, but in a big enough company they'd have a hard time showing such a hardship.

If you have a question on FMLA, discrimination, whistleblowing, employment contracts, non-competition agreements or any other employment law issue, and don't mind having me answer it publicly, feel free to ask it in the comments section. If you ask me here, you're asking for general information and not for legal advice. The question and answer will be public and will not be covered by attorney-client privilege, nor will it establish an attorney-client relationship. If you need legal advice or have an urgent legal issue that needs to be dealt with, contact an employment lawyer in your state.


  1. I have a question regarding a form of contract employment.

    My wife works for company ABC which has a contract with company XYZ to provide her onsite at XYZ as a dispatcher. She hired into this contracted position several years ago. She has Lupus which has been progressing more the past 6 months so she got certified through her company ABC for intermittent FMLA leave for her chronic illness.

    Recently XYZ has been complaining about her missing days and she has heard that XYZ may want her off the account due to missed days. She was told by supervisor for ABC that she needs to make it to work, even if he has to come pick her up. Also a supervisor has told her that if XYC decides to drop her off the account, that ABC would let her go.

    Since she Has been FMLA certified through her company ABC, and if XYZ wants her replaced, would ABC be required under the rules of FMLA to maintain her employment in another position?

  2. Hi I'm Bri

    I recently found out I was pregnant after I took a week off of work due to illness. Prior to that consecutive week of absence I've been taking days here and there for severe morning sickness (I mean it's BAD) my supervisor suggested that I get an Fmla form to fill out and take to my doctor. I waiting for the slip and proceeded to take more days off. My question is , can I have my health care provider cover me for the day before I was about to complete and turn in the forms? It's taking a while because I had to switch dr due to his availability so now I have to wait a lil longer for the forms to be filled out . I would very much like to keep my job.


I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.