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Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 17304
Experience:  Licensed Attorney with 28 yrs. exp in Employment Law
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Can an FMLA denial be appealed, and if so, how?

Resolved Question:

Can an FMLA denial be appealed, and if so, how?
Submitted: 2 years ago.
Category: Employment Law
Expert:  Marsha411JD replied 2 years ago.
Hello,

FMLA is not a "claim" it is certification prepared by a doctor for unpaid leave. Are you saying that you were denied that unpaid leave, or is this something else such as Short Term Disability? Why would CIGNA have the decisionmaking authority, is that who you work for? Was there a stated reason given for the denial?
Customer: replied 2 years ago.
I work for GameStop corporate and Cigna is the insurance company GameStop uses. FMLA is handled by them. Recently my father was hospitalized and subsequently died. I initially asked for leave to take care of him. After he died, I asked for leave to take care of my mother for a short while, to take care of legal, financial, and physical needs for her. The doctor filled out the paperwork, stating that she was elderly and had limited mobility. The form itself states "keep in mind that your patient's need for care by the employee seeking leave may include assistance with basic medical, hygienic, nutritional, safety or transportation needs, or the provision of physical or psychological care". I was denied the leave because "my mother was only grieving" and I should ask for bereavement from the company I work for. When I returned to work, I had four days of unexcused absence because the claim was denied. Numerous people have expressed incredulity that I would be denied leave of bsence to take care of my aged mother after my father passed away. I, myself, was flabbergasted to be told that my mother was only grieving. That is why I think that the claim wasn't even read completely through, before being dismissed as an unqualified reason to ask for leave.
Expert:  Marsha411JD replied 2 years ago.
Hello again,

Thank you for the information. In order to be clear there is a difference between a leave of absence for bereavement or personal reasons and leave that qualifies under FMLA for job protection. In order to qualify for FMLA your family member must have a "serious health condition." Below is how that is defined by the Act and set out by the U.S. Department of Labor. You can find more information about your rights under FMLA, by going to: http://www.dol.gov/whd/regs/compliance/1421.htm#2c

I, of course, cannot say whether or not your mother does have a serious health condition but I can say that at this point and time FMLA does not cover a grieving period. The courts have held that leave to care for a family member does not apply to the period after the relative’s death when an employee may want time off to grieve or take
care of the estate. This would be the case even if it were your mother that was grieving. Basically, the courts have determined that a serious health condition applies only to people who are alive. (Brown v. J.C. Penney Corp., 924 F. Supp. 1158 (S.D. Fl. 1996).

There has been lobbying to add a grief period in the Act, but that has not yet occurred. In any event, as I mentioned I can't give you an opinion about whether or not your mother has a serious health condition. If you believe that she does after reading the guidance below and at the link I provided to you. Then you will want to file an appeal with CIGNA. If they still deny your request for FMLA, then you can either file a complaint with the Wage and Hour Division of the U.S. Department of Labor (agency with enforcement over the Act) or file suit in Federal court under the Act.

"Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves:

  • any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or
  • a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or
  • any period of incapacity due to pregnancy, or for prenatal care; or
  • any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or
  • a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer's, stroke, terminal diseases, etc.); or,
  • any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).

 

 

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Customer: replied 2 years ago.
How do I file an appeal with Cigna, because I was told that there is no appeal form or process?
Expert:  Marsha411JD replied 2 years ago.
Alright well if CIGNA themselves told you that you could not appeal, which I would be a bit surprised at, the next step is to either file a complaint with the Wage and Hour Division of the U.S. Department of Labor as I mentioned in my first response or hire an attorney to file suit under the Act.
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 17304
Experience: Licensed Attorney with 28 yrs. exp in Employment Law
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