Common FMLA
Violations!

A. FMLA violations cover the entire spectrum of the governing regulation,
Title 29 of the CFR, Part 825. However, the most common violations are listed
below.

1. Denial, withdrawal, or "not currently approved", of FMLA because of
untimeliness when the FMLA specifically stipulates that the issue of
timeliness should be based on circumstances.

2. Denial, withdrawal, or "not currently approved", FMLA for not abiding to
suspense dates that are unreasonable under the circumstances. Although this is
also an issue of timeliness, there is no stipulation in the FMLA for suspense
dates for different actions. This is a question of what is reasonable, and
what is not, given the circumstances.

3. Denial, withdrawal, or "not currently approved", FMLA recertifications
when initiated by the employee when they are not incapacitated or receiving
active treatment from a physician, ie., continued office visits for
treatments, etc. The FMLA distinctly states that the concept of "continued
treatments" include, but is not limited to, prescription medications,
supportive devices, ie., Oxygen, etc.

4. Denial, withdrawal, or "not currently approved", for FMLA because
management determines that a "medical condition" is not a serious health
condition when they are not qualified to make such a determination. Even if an
employer’s health representative made such a determination, there is no
provision for such a determination unless it is part of a third (3rd) opinion.
An employer’s health representative cannot act on behalf of the employer in a
second opinion.

5. Denial, withdrawal, or "not currently approved", for FMLA
recertifications even though management requested such certification, and the
denial is without just cause.

6. Denial of FMLA leave in general when the statutes do not allow a denial
under most circumstances.

7. Withdrawal of FMLA, once certified, when the statutes do not allow a
withdrawal of FMLA leave, or FMLA protected status once the certification
process is completed, and in favor of the employee.

8. Harassment by requiring repeated "clarification" requests from the
employee’s doctor, at the employee’s time and expense, when such clarification
is in direct violation of the FMLA statutes. Management may request the
employee’s permission that an employer’s designated health care representative
contact the employee’s doctor for the purposes of clarification. The employee
is not obligated to grant this permission. If the permission is not granted,
the employer has another avenue to address the issue of clarification. The
employer cannot repeatedly send the employee back to their doctor to obtain
clarification. The employer can send the employee back to the doctor if the
certification, or recertification, is not complete, but that is the only
instance that the employer can make that request. The Employer may send the
individual to a 2nd opinion doctor if an employee refuses to allow the
employer to contact his/her personal physician, or if the employer believes
the FMLA certification is not correct or fraudulent.

9. Initiation of disciplinary action for FMLA related illnesses in direct
violation of the FMLA statutes, and The Rehabilitation Act of 1973.

10. Creation of a hostile work atmosphere by repeated violations of the
FMLA, The Rehabilitation Act of 1973, and continued harassment of the
employee.

11. Prohibiting the use of FMLA based on denials, and withdrawals of FMLA
"protected status", or "not currently approved" designation of FMLA "protected
status", when such actions are expressly prohibited. FMLA can be denied, or
withdrawn, but only in very specific instances. Management does not have
"Carte Blanche" authority to take these types of actions without just
cause.

12. Denial because information is put on the wrong line.

13. Denial because the employee does not meet the 1250 hour work
requirement in the leave year.

14. Denial for cases of intermittent leave for a serious health condition
when the requirement for intermittent leave is met on the first absence
utilizing the first certification during any leave year.

15. Requesting a "Return to Work" packet in certain instances in violation
of the Agency's own regulations, DOL Advisory Opinions, and FMLA regulations.

16. Requesting 2nd opinions for recertifications when such action is
specifically prohibited by the FMLA.

17. New (8/03): Requesting that a person return to work on limited
duty when requesting FMLA sick leave for a serious health condition that
incapacitates the individual.

18. New (2/04): Requesting that a person provide a new certification
form because the Doctor's office used a "stamped" signature.

19. New (2/04): Requesting that a person provide a new certification
form because the Doctor's signature was illegible.

20. New (7/08):  "Make-Up" work for salaried employees.
Reference is made to US Court of Appeals for the 7th Circuit, Debra L. Lewis
v. School District # 70, et.al., decided April 26, 2008.

B. I am sure that there are more violations that I have not heard about, but
the above are the most common violations that the Agency utilizes to deny your
FMLA request. If you have had one that is not listed above, please e-mail me at
[email-masked]

C. Never, ever, change a certification, or add to a certification, after
your physician has signed it. This is considered fraud, even with the best of
intentions. If the certification is lacking in some aspect, or something is
missed, return to your doctor to add the information, or to complete a new
certification form. It would behoove all employees to utilize their Union's FMLA
forms. They are simpler to understand, and complete, then the Department of
Labor's WH-380. Your are not required to utilize the WH-380. It is optional. The
APWU, NALC, and NPMHU have their own versions of the FMLA forms for yourself and
your family...use them! For all intents and purposes, a specific form need not
be utilized. It can just be a statement from the doctor, however, all the
required information needs to be in that statement. In that respect, it
is simpler to use the Union's forms.

The following navigational links for this website are provided for your
benefit:

FMLA
Introduction Table of Contents

FMLA
Avenues of Redress-Your Union

EEO
Introduction Table of Contents

WebLinks Page

Joining a FMLA
Certified Class Action EEO Complaint in EEOC Jurisdictional Proceedings

Home
Page

Site
Links

Net
Links

Why
"Flame"?

Contacts

Updated on: July
13, 2008 06:08:02 PM

Copyright © 2001-2007 - Postal Flame
All Rights
Reserved
Webmaster: Postal Flame - [email-masked]