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ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 11532
Experience:  Licensed Texas General Practice Attorney
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Question about FMLA

Resolved Question:

Question about FMLA
Submitted: 9 months ago.
Category: Employment Law
Expert:  ScottyMacEsq replied 9 months ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

Can you tell me what your question is?

Customer:

I have been our of work since Oct 11. I applied for Short term disability with my company, they are qualified to provide this, and they do. I have been going back and forth with HR over the form they want for medical certification, i thought it was resolved, but they sent to me again and said they want more info, this is the third time,

Customer:

and it is getting very frustrating, and I think the company is doing this to delay, and cause added stress

ScottyMacEsq :

And what is your question about FMLA? (short term disability, while potentially running in tandem with FMLA, is a different issue than FMLA)

Customer:

the company has not granted FMLA, yet, they keep wanting more medical info, and I cant qualify for STD, unless the company first grants FMLA

ScottyMacEsq :

And can you tell me what your specific question is? While you have explained your situation more fully, I still don't see a question...

Customer:

What and how much do I provide, the physician has given everything short of a diagnosis, how much do I need to provide, and how many times can they keep requesting my medical info?

Customer:

and delaying a decision

Customer:

the form is WH-382, they want more on Q. 4 and 7

ScottyMacEsq :

Do you mean 380-E? 382 is the approval form...

Customer:

it says in the email, they have included, form, wh-382 and to answer more info for question, 4 and 7

ScottyMacEsq :

382 is an approval / denial of leave. The bottom shows why they could deny it, but questions 4 and 7 like pertain to Form 380 (as 382 doesn't HAVE a question 4 or 7). To be honest, you've probably given enough. The employer does have a right to verify the information under FMLA guidelines, but this is subject to a "reasonableness" standard. There's a point where continuing to string you out is not permissible. Now to file a complaint based upon FMLA discrimination and retaliation does "cross a line" that would be better to avoid, if at all possible. An employer may require that the need for leave for a serious health condition of the employee or the employee's immediate family member be supported by a certification issued by a health care provider. The employer must allow the employee at least 15 calendar days to obtain the medical certification.


An employer may, at its own expense, require the employee to obtain a second medical certification from a health care provider. The employer may choose the health care provider for the second opinion, except that in most cases the employer may not regularly contract with or otherwise regularly use the services of the health care provider. If the opinions of the employee's and the employer's designated health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the employer's expense. This third opinion shall be final and binding. The third health care provider must be approved jointly by the employer and the employee.

ScottyMacEsq :

Again, at some point the additional request becomes harassing, at which point you could file a complaint...

ScottyMacEsq :

The Department of Labor Wage and Hour Division handles FMLA complaints. Here's the site as well as a way to file such a complaint: http://www.dol.gov/wecanhelp/howtofilecomplaint.htm

ScottyMacEsq :

Now if I were you, I would try one last time to comply with them and what they're seeking. Try to get as much information from them as possible as to what they want.

ScottyMacEsq :

Again, the reason is that filing a complaint does cross a line. While they can't legally retaliate against you for filing such a complaint, that still might "stall" your upward mobility in the company, so this should be a last ditch situation.

Customer:

yes, the form is DOL WH-382, and as I said, this is the third time, and my physician even said, what they hell are they doing, what should I do at this point?

ScottyMacEsq :

I completely understand. The form that they gave you denying the FMLA is 382. The one that references paragraphs 4 and 7 is most likely 380, as 382 doesn't have a paragraph 4 and 7.

ScottyMacEsq :

Here's what 382 looks like: http://www.dol.gov/whd/forms/WH-382.pdf

Customer:

yes, I understand, I know the company, and this would be something they would do, I have serious health problems, also, I am PhD educated, I dont want to take legal action, but it seems to be a stall technique, and to make matters worse, I will see what more I can provide, I dont have to give a diagosis correct?

ScottyMacEsq :

And again, like I said, you probably have enough to file a complaint based upon FMLA discrimination / retaliation / etc... but assuming that you want to continue your career with this company, it does cross a certain line to file such a complaint, and while they can't legally terminate or take adverse action against you for filing such a complaint, more often than not it will stall your career mobility.

Customer:

They also will not return my call when I called today and asked for clarification so the form would not be sent back

ScottyMacEsq :

No. A diagnosis is not required under FMLA rules or as part of the certification.

ScottyMacEsq :

FMLA does not require that you tell your employer the exact diagnosis (although you may have to submit this information to an insurance provider to be eligible for insurance benefits).

Customer:

thanks, XXXXX XXXXX speak with my physician tomorrow, yes, my insurance is paying for the health treatment, just making me go without pay for over a month now,

ScottyMacEsq :

I understand, and I do wish you the best of luck in this situation. Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate this answer either a 3, 4, or 5 (good or better). Please note that I do not get any credit for this answer unless and until you rate it that way. Thank you, XXXXX XXXXX good luck to you!

ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 11532
Experience: Licensed Texas General Practice Attorney
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