Human Resources: Leave Laws Must Be Satisfied When Addressing Malingering

When employees are unnecessarily extending leave, many tools such as second and third opinions used by employers to prove malingering are applied differently under workers´ compensation, the FMLA and the ADA, said Laura Ostroff, director of human resources, Bon Secours Health System, in an interview with a Handbook editor.

Workers´ compensation
Under individual leave laws, there are avenues that employers can take if they are unsure of the validity of an employee´s leave or injury claim, said Ostroff.

An employer that doubts the validity of a medical diagnosis is permitted by workers´ compensation statutes to ask for second or third opinions, she said.

Under workers´ compensation, the employee must be reimbursed for reasonable out-of-pocket expenses incurred to obtain these opinions and there are few restrictions on the selection or location of a physician or obtaining additional information from the employee´s physician, Ostroff added.

Some companies choose to provide workers with physicians when there are workplace injuries to give employers more control from the onset, she said.

Other employers develop panels of selected physicians, based on their positive track records for returning employees out on workers´ compensation to work quickly. State laws differ as to whether the employee or the employer can choose the physician (see 321 of the Handbook).

FMLA provisions
Under the FMLA, a second medical certification is allowed from the employer´s doctor. A third is permitted from an independent physician (see 322 of the Handbook).

The initial FMLA certification from the employee´s health-care provider asks how much leave will be necessary for the employee to recover from his or her serious health condition, Ostroff remarked. Nonetheless, employers are allowed to ask for recertification from an employee whose request for a leave extension may raise suspicions of possible malingering, she said.

If an employee´s initial certification notes only the need for a portion of the FMLA´s annual 12 weeks, and the employee later requests an extension, an employer is allowed to require a recertification, she noted. Recertification may be requested no more often than every 30 days unless the employer receives information that raises doubts about the employee´s stated reason for the absence (29 C.F.R. Â§825.308(c)).

If the minimum duration of the employee´s incapacity specified on a medical certification is more than 30 days, the employer may not request recertification until 30 days have passed, unless the employee requests a leave extension.

Employers also can request recertification if the original circumstances such as the condition´s severity or the absence´s duration or frequency have changed significantly. Any recertification requested by the employer is at the employee´s expense unless the employer provides otherwise, according to the regulations.

Possible ADA violations
Employers should remember when conducting certifications under the FMLA that there are possible conflicts with the ADA, Ostroff cautioned.

Medical inquiries of current employees are prohibited by the ADA except in the following limited circumstances (see 321 of the Handbook):

To determine if the worker can do the essential functions of the job following a leave for illness or injury or if the employee´s fitness for duty is otherwise in question;

After an employee requests accommodation, to determine if the employee has a disability covered by the ADA and what reasonable accommodations may be required;

If required for employer-provided health or life insurance or for voluntary participation in an employer-sponsored health program; and

If mandatory under another federal law or regulation.

Companies should be careful not to inquire into possible future effects of their employees´ disabilities. For example, if medical documentation shows an employee has cancer, the employer may not ask whether the employee´s illness is terminal.

Moreover, employers may not communicate directly with workers´ physicians without employees´ consent, except, in most states, when the time off also qualifies as workers´ compensation leave, according to Ellen McLaughlin, a partner at the Chicago law office of Seyfarth Shaw. Speaking at the National Employment Law Institute´s ADA Briefing in Washington, D.C., on April 19, McLaughlin cautioned that even a company nurse generally cannot call an employee´s physician, unless the nurse is that worker´s health care provider.

Private investigators
Although it should be used as a last resort, if the validity of a workers´ compensation claim is questionable, employers can hire outside investigators to watch suspect employees, Ostroff said.

Employers must be aware of state privacy laws, she warned. "In Maryland, for example, you cannot tape someone´s conversation without permission."

Companies should check with their attorneys before deciding to hire any outside investigators, she advised. Deterring malingering from the start may be a less drastic option, she noted.

Keeping in contact with an employee on leave is one way to do this. "If you continue contact with someone who is on leave," the worker has a tendency to want to come back, she stated.