The real question that I have is simply this: Can an employer demand that the FMLA paperwork that the employer is requesting, be provided ONLY by the specialist the employer identifies (my sleep doc), OR is the employer legally bound to honor FMLA paperwork provided by any qualified doctor (my internist)? It's an issue because my employer is about to tell me that I am terminated because I did not provide FMLA paperwork from the specialist by the employer's deadline, EVEN THOUGH I have provided the same paperwork, documenting the same diagnosis, from the internist as will be provided by the sleep specialist whenever he FINALLY gets his act in gear.
From here down, it's mostly unnecessary venting:
The Family and Medical Leave Act (FMLA) requires employers [who have over 50 employees in the general vicinity] to allow employees [who have worked for that employer full-time (or very close to it) for at least 12 months] 12 weeks of paid/unpaid [contiguous or cumulative] leave if the employee has a doctor document the employee's serious health condition, or the serious health condition of their family member requiring their care.
When an employee is given FMLA paperwork to be completed by her doctor, there is a deadline set by the employer for when that paperwork must be returned. My employer wanted it back by 8/10/09. Here's the chronology:
On July 19th, my employer gave me the blank FMLA paperwork.
On July 21st, I took the FMLA paperwork to my internist, who documented the newly diagnosed narcolepsy and my (hopefully temporary) inability to drive. My internist of course made this documentation on the basis of the official written report from my sleep doc, stating the diagnosis of the narcolepsy and how it is being treated.
On July 22nd, when I gave my internist's FMLA documentation back to HR on 7/22, HR told me that my internist's FMLA report would not be sufficient to determine whether I am eligible for short-term disability once my paid leave runs out, and therefore to continue my employment with the agency, and told me I must submit FMLA paperwork from my sleep specialist as well. I figured this must be illegal, but I didn't want to argue with her.
On July 31st, I faxed the FMLA paperwork to my sleep doc. It took me awhile to get organized, because narcolepsy was beating my butt.
On August 6th, I called because I had not received the paperwork. I was told by the sleep doc's secretary that the sleep doc would be out of town until returning to the office on 8/10, BUT that she had "just faxed" the FMLA paperwork. So everything's ok, right? Wrong.
So I receive the faxed paperwork from the sleep doc on August 6th, and it's ALL WRONG.
- It has my first two appointments with the sleep specialist, but not the appointment on 7/7/09 when I was actually diagnosed with narcolepsy.
- The DIAGNOSIS IS WRONG. It says "hypersomnolence." I don't have hypersomnolence! At least, I don't think I do. And what happened to narcolepsy??
- The date that I was "incapacitated" (i.e. told not to drive) is a month EARLIER than the date that I was told not to drive. The job function listed as "employee is unable to perform" says "can not drive." Not "temporarily can not drive" !! Wouldn't you interpret "can not drive" to be an apparently permanent condition?? Bear in mind that driving is an essential function of my current job - and my not driving is the ONE AND ONLY reason that I am currently on leave! AND, if I give my employer this form, they're going to think that I was driving myself AND MY CLIENTS around, after being ordered not to drive by a doctor one month before I informed my employer I could not drive! Which DID NOT HAPPEN!
- And then, the doc checks a box indicating that my medical appointments with him are not medically necessary! Augh! There goes my only chance to get permission to take time during the workday to HAVE an appointment with my sleep doc! What the heck!
Still on August 6th, I call the sleep doc's secretary back, and explain that there are numerous errors on the form. She says no there aren't. I explain that it is vitally important that the changes be made and get faxed out on 8/10, OR I WILL GET FIRED. But I stay very calm, and oh, so cheerful (all though I feel like throwing something at her - maybe my very large and mean supervisor), and ask her to look at the form (and she grumbles), and so we start to go through it, item by item. But the time that we get to the WRONG DIAGNOSIS, she's beginning to see the light. It turned out that the sleep doc was out of the office till Monday the 10th. So, being her helpful self, she cuts me off, tells me to fax the needed changes, and hangs up on me. (Steam comes out ears)
On August 7th (since the sleep doc is out of town ANYWAY), I fax back another typed letter VERY CLEARLY explaining the needed changes, and briefly why each is important, as well as the WRONG FMLA form marked up with the needed changes.
On August 10th, my employer's deadline, no faxed FMLA form arrives.
On August 11th, no FMLA form arrives. I phone the sleep doc's office to inquire when (oh, so, sweetly) I should expect the FMLA paperwork. Not today, probably not tomorrow either, I'm told, the sleep doc is very busy catching up after being out of the office last week. NO KIDDING! I again, calmly, explain that if I do not receive that paperwork YESTERDAY I will get fired, we are beyond the deadline, couldn't you PLEASE ask him to put it on the top of the catch-up pile?? BECAUSE IF I DON'T GET IT, I AM GOING TO HAVE TO PAY $3,000 TO HIRE AN EMPLOYMENT LAWYER TO FRICKING GET MY JOB BACK! I tell her this, actually calmly. So flipping flying unbelievable. I'll try, she says, in the sort of voice that you know she means she's not going to make any effort on my behalf at all. The really funny thing is that I don't get paid very much. $3,000 is a REALLY big amount of my annual salary. But my salary is essential. I've got a kid in college, and another headed to college soon enough. My husband walks around all the time, eyes dark, weighed down by stress, because I'm about to lose my job. AND THIS SLEEP DOC ISN'T HELPING.
So, that's where we are at the moment.
Just to recap, the essential question is: Can an employer demand that the FMLA paperwork that the employer is requesting, be provided ONLY by the specialist the employer identifies (my sleep doc), OR is the employer legally bound to honor FMLA paperwork provided by any qualified doctor (my internist)?
Does anyone know the answer?
And, if you happen to know a good employment lawyer (the one I've found so far is maybe not so hot) in the Washington DC area, would you please private message me with the lawyer's name?
Thanks so very much for listening to me vent.