Doctor Retracting and No Longer Permitting Intermittent FMLA

[DestinyV]

My question involves labor and employment law for the state of: CALIFORNIA

Hello and good day to everyone.

Background: I have worked at my job for 3 years and 9 months and I may very well lose my job over this.


I took a leave of absence last year from January to April for personal issues-first time ever taking a leave. During that time I was approved for FMLA. When coming back to work, I had to continue my care by seeing doctors on an occasional basis which meant leaving work early or taking extra time off during the day to get the appointment in. HR spoke to me and asked if these things were do to FMLA and I said yes, which is when they stated I could begin taking intermittent FMLA. I thought the idea was great since I have chronic fatigue as well which my doctor is aware of.

I went to see my primary care physician and she approved intermittent FMLA and put on the form "needs time for rest" and also approved doctors appointment. AT this time she did not have a diagnosis for the chronic fatigue and sent me to a specialist where I had work done. They found nothing. I have severe difficulty getting out of bed on some mornings and have overslept through my alarm on a few occasions (I believe 3 times). These are things I specifically stated to my doctor when requesting the intermittent FMLA...hence "needs time for rest." She stated that she would be vague about it.

Moving forward, HR is now requesting a doctors note stating "So and so's FMLA may allow for her to sleep through her alarm." I thought this was ridiculous, but figured since my doctor knows about my chronic fatigue everything would be OK.

Unfortunately, it was not and she is now saying since there is no diagnosis (except for my other condition) that because this paperwork is legal she will not provide further documentation. I advised her that if she felt that way then I was OK with her forgoing future FMLA (though I will be getting a second opinion), but that my employer is requesting the note for when I slept through my alarm-which is in the past during my Intermittent FMLA.

My Doctor will not provide this either, even though her and I have discussed this was one of the reasons for needing "more time for rest."

Who is at fault here? Me for not being able to now provide legal documentation for my FMLA? My doctor for somewhat retracting the FMLA she had given my employer (which DID NOT HAVE A TIME FRAME attached to it). Or my employer for still questioning the FMLA even though it says "needs time for rest."

I will, or at least I feel, will at this point lose my job if I cannot get a note. I am very upset that I was ever given intermittent FMLA in the first place for my chronic fatigue and follow up with doctors because now, based on my doctor, I cannot provide documentation.

What do you suggest I do?

[cbg]

No one is "at fault". Because your doctor believed the intermittant FMLA was appropriate at one time does not mean she is legally obligated to continue to believe that. If she does not feel it is appropriate any longer, than she is not obligated to approve it. Your employer is entitled to confirmation that the FMLA is still appropriate - which clearly your doctor does not think it is.

[DestinyV]

Correct. I am not requesting she continue my FMLA, however, she will not provide documentation for when I was approved for intermittent FMLA either. That is where I am scared, because at this point she is retracting it. Is this legal? She signed FMLA paperwork in January of this year.

[cbg]

Yes. It is legal for your doctor to refuse to validate your sleeping through the alarm as being protected under FMLA.

[DestinyV]

Yes. It is legal for your doctor to refuse to validate your sleeping through the alarm as being protected under FMLA.

Alright fair enough, but I am now confused because this is one of the reasons she provided me the FMLA in the first place (knowing about this incidence). How can she now go back on what we discussed?

Essentially I'm gathering that a doctor could say "needs time" for this or that but then later say "that is not what I wag referring to..regardless of the conversation they had with the patient. Is this what you ate saying? If so...what do you suggest I do to preven
t disciplinary action?

[cbg]

The criteria for FMLA are set by Federal law, and no one, not your doctor, not your employer, not you, not nobody not nohow, has the authority to change or amend them unless they moonlight as a member of Congress. Any leave that is provided that does not meet the criteria is not FMLA, by definition. The criteria are four:

1.) That you have worked for your employer for a minimum of 12 months
2.) That your employer have a minimum of 50 employees within 75 miles of your location
3.) That you have worked a minimum of 1,250 hours in the 12 months immediately preceding your leave
4.) That you or a qualified dependent/beneficiary have a serious health condition as defined by the FMLA statute.

The first three criteria are pretty black and white most of the time, particularly #1 and #3. There can be some grey about #2 if the number of employees hovers around 50, but the statute has a provision for how to count it so that most of the time it's pretty clear. #4, however, can be a bit troublesome.

There is no list of conditions that automatically qualify for FMLA protection. Rather, there is a list of responses; did the patient need to be hospitalized and if so for how long? Did the patient need to be medically treated and if so how many times over how long a period of time? And so on. It is also quite clear that in the case of any question, the DOCTOR makes the final call. But the statute has a provision that allows for time to be provisionally designated as FMLA while it is determined if the condition qualifies for FMLA protection or not. Normally that provision allows for the employer to tentatively designate time as FMLA while they wait for medical confirmation from the doctor, but I don't know of anything in the law that prohibits the doctor from a provisional diagnosis while she reviews the medical information. And in any case, since the statute very definitely gives the doctor the final call on whether something is FMLA or not, if the doctor says it doesn't qualify for FMLA, it doesn't. The employer has no authority to designate time as FMLA if there is no medical justification for it - in fact, the employer is specifically prohibited from formally designating time as FMLA if it doesn't apply. Since FMLA is finite with a very definite limit, they cannot deduct time from your FMLA allotment without it qualifying.

So I suggest you buy a louder alarm clock.

[DestinyV]

The criteria for FMLA are set by Federal law, and no one, not your doctor, not your employer, not you, not nobody not nohow, has the authority to change or amend them unless they moonlight as a member of Congress. Any leave that is provided that does not meet the criteria is not FMLA, by definition. The criteria are four:

1.) That you have worked for your employer for a minimum of 12 months
2.) That your employer have a minimum of 50 employees within 75 miles of your location
3.) That you have worked a minimum of 1,250 hours in the 12 months immediately preceding your leave
4.) That you or a qualified dependent/beneficiary have a serious health condition as defined by the FMLA statute.

The first three criteria are pretty black and white most of the time, particularly #1 and #3. There can be some grey about #2 if the number of employees hovers around 50, but the statute has a provision for how to count it so that most of the time it's pretty clear. #4, however, can be a bit troublesome.

There is no list of conditions that automatically qualify for FMLA protection. Rather, there is a list of responses; did the patient need to be hospitalized and if so for how long? Did the patient need to be medically treated and if so how many times over how long a period of time? And so on. It is also quite clear that in the case of any question, the DOCTOR makes the final call. But the statute has a provision that allows for time to be provisionally designated as FMLA while it is determined if the condition qualifies for FMLA protection or not. Normally that provision allows for the employer to tentatively designate time as FMLA while they wait for medical confirmation from the doctor, but I don't know of anything in the law that prohibits the doctor from a provisional diagnosis while she reviews the medical information. And in any case, since the statute very definitely gives the doctor the final call on whether something is FMLA or not, if the doctor says it doesn't qualify for FMLA, it doesn't. The employer has no authority to designate time as FMLA if there is no medical justification for it - in fact, the employer is specifically prohibited from formally designating time as FMLA if it doesn't apply. Since FMLA is finite with a very definite limit, they cannot deduct time from your FMLA allotment without it qualifying.

So I suggest you buy a louder alarm clock.

Thank you!
My employer must have been setting me up this whole time (or unaware of the law themselves) then because every time I needed extra time on my lunch breaks for additional rest (which is another thing my doctor and I discussed the extra rest time was for) or came in a few minutes late due to the fatigue (another) all my employer did was say, "let us know when these incidences are FMLA related so we can doc them under intermittent FMLA. I was never told anything else....

As an aside, I do qualify for FMLA based on the above criteria and my employer checked as well first~

[cbg]

I don't see that as being either the employer setting you up or them not being aware of the law. If your doctor had initially suggested that FMLA was appropriate, then they were doing exactly what they were supposed to do.

[Mr. Knowitall]

It sounds like miscommunication.

Patient: "Doctor, I have chronic fatigue that causes me problems at work, and I can barely drag my posterior out of bed in the morning - sometimes I even sleep through my alarm clock."
Doctor: "I'll write you something that can help you get breaks or rest at work, how about 'needs time for rest'?"

Employer: "You've now slept through your alarm clock three times and have used the 'needs time for rest' note from your doctor as an excuse. We've let you take rests during the work day, but we need your doctor to confirm that 'needs time for rest' extends to sleeping through your alarm clock and not getting to work on time."

Doctor: "I never intended this note to be an used to justify getting to work late or sleeping through your alarm clock. Also, I'm not comfortable filling out this legal-looking form from your employer because it requires that I state a diagnosis, and I haven't diagnosed the cause of your fatigue."

It sounds like a good idea to explore diagnostic options for your fatigue, including the possibility of a sleep disorder, and to see if your doctor (or a new doctor) can complete paperwork - or, better, perhaps even find you an effective treatment or remedy - based upon their findings.