FMLA serious health conditions: Who decides and how?

• Position: FMLA Certification

One of the trickiest parts of FMLA administration is figuring out whether an employee's health condition qualifies for FMLA leave.

The law defines a serious health condition as "an illness, injury, impairment or physical or mental condition that involves ... continuing treatment by a health care provider." Regulations further define a "continuing treatment" as requiring a "period of incapacity of more than three consecutive, full calendar days."

"Incapacity" is defined as the "inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore or recovery therefrom."

How does an employee prove incapacity for three or more days? Are you required to take the employee at his or her word, or can you ask for medical evidence?

Courts have taken two approaches.

* Some courts say an employee's own statements--without any medical support whatsoever--are sufficient to establish incapacitation to support a claim for FMLA leave.

* Other courts say an employee can support a claim of incapacity for FMLA leave purposes with a combination of the employee's own statements along with documentation from a health care provider.

Both of those views give employees a tremendous amount of latitude to game the system by claiming FMLA leave that may not be medically supported.

Use the certification process

Regardless of the legal standard employed in determining whether an employee is "incapacitated" (and, therefore, eligible for FMLA leave), your best defense against potential liability is to use the FMLA's medical certification process to verify the employee's eligibility for leave.

Follow these steps to verify and certify an employee's right to FMLA leave:

1 Provide a statement in your required FMLA eligibility notice requiring the employee to furnish certification of the serious health condition, along...