by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
March 02, 2021
I will be the first to admit that the Family and Medical Leave Act has many challenging and gray areas. (I call it job security.) The fluctuating workweek rule, anyone? How about applying in loco parentis? But here are a couple of rules that are crystal clear: (1) the employer must send notice to an employee of his or her FMLA eligibility (or lack thereof) within 5 business days after the employee requests time off that might be FMLA-covered; and (2) the employer must send a designation notice – that is, approve or deny the requested leave – to the employee within 5 business days after receiving sufficient information to determine whether the leave is being taken for an FMLA-qualifying reason (e.g., after receiving a completed medical certification from the employee’s health care provider).
5 layers of administrative process. It seems that Los Angeles World Airports – owner and operator of Los Angeles International and Van Nuys airports – didn’t get the memo. Apparently LA World Airports had a process whereby employee FMLA requests went through 5 (that’s five!) levels of administrative review before reaching human resources. That process typically took a month, with some requests pending for months. Although not addressed, that probably means that LA World Airports didn’t send the FMLA-required notice of rights and responsibilities to employees within 5 days of a leave request either, since that notice is supposed to go out with the eligibility notice.
So-called second opinions? According to the DOL, the employer also “improperly relied on second opinions from an in-house physician” and as a consequence, denied employee leave requests. This is like fingernails on a chalkboard to me. First, the FMLA regulations provide a second opinion can be required if the employer has reason to doubt the validity of the employee’s certification. This means the employer must have a good reason to question the validity of the certification. Examples may include receiving a certification from a provider in the wrong medical specialty for the employee’s condition, or advocating for an excessively long or frequent leave for the employee’s condition. The employee is provisionally entitled to the requested leave (and maintenance of group health benefits) pending receipt of the second (or third) medical opinion.
Next, although the second opinion is to be furnished by a health care provider of the employer’s choice (and at the employer’s cost), the selected provider cannot be employed by the employer on a regular basis or one with whom the employer regularly contracts or whose services the employer otherwise regularly uses. The single exception is if the employer is located in an area where access to health care is extremely limited. Methinks that is unlikely the case in the vicinity of LAX and the Van Nuys airport.
Finally, if the opinions of the employee’s health care provider and the second opinion provider differ, the employer must afford the employee the opportunity for an opinion from a third provider selected jointly. Although the regulations don’t elaborate, it seems the employer’s other option is to follow the opinion of the employee’s provider. I think it’s a safe bet that neither of these things occurred in LA World’s FMLA process.
The consequences. As a result of the DOL’s investigation, LA World:
- Redesigned its system to include a new web-based tool that provides workers updates and approvals within 24 hours, instead of months;
- No longer routinely requires second opinions from health care providers;
- Created a reference guide for leave specialists;
- Scheduled joint training sessions with the Wage and Hour Division; and
- Removed all adverse actions against employees caused by prior leave policies that violated the FMLA.
You can view the DOL’s news release here.
Matrix can help! Maybe you already know this, but Matrix provides leave of absence administration services for the employees of our client employers (surprised?). That includes both federal laws like the FMLA, but also state leave of absence laws and company leave policies. With Matrix’s automated systems and trained, experienced claims examiners, we routinely send out those eligibility, rights and responsibilities, and designation notices in fewer than the required 5 days. And for those difficult situations where there’s something suspect about the employee’s medical certification, we have a robust process for properly identifying whether there is reason to question the validity of the certification and, if so, to properly obtain a second and/or third medical certification to manage the employee’s leave.
For assistance or if you have questions, contact your Matrix or Reliance Standard account manager or practice leader, or send a message to us at ping@matrixcos.com.