Legal Question in Medical Leave in Washington

Re: Rectroactive Family Medical Leave Act

Your FMLA rights arise from your treatment for a �serious health condition.� A doctor�s note for any particular doctor visit is technically not required. It would be required to classify a particular absence as a protected absence under FMLA. The absence can be certified retroactively by a note by the doctor because its not about when the report is created, but rather what the absence (or course of treatment) was for.

It appears from your fact description that what the employer wants is support or proof that a particular absence is the result of a qualifying serious health condition. Incidentally, a serious health condition need not be what we usually consider a �serious illness.� What constitutes a serious health condition is one of the more frequently misunderstood aspects of the FMLA. Department of Labor Regulations define the phrase as an illness, injury, impairment or physical or mental condition that involves inpatient care, a period of incapacity combined with treatment by a health care provider, pregnancy or prenatal care, chronic conditions, long-term incapacitating conditions, and conditions requiring multiple treatments.

Incapacity plus treatment means a period of incapacity of more than three consecutive days, including any later treatment or period of incapacity relating to the same condition, that also involves: (1) treatment two or more times by a health care provider, by a nurse or physician�s assistant, or a physical therapist; or (2) treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider. 29 C.F.R. � 825.114(a)(2)(i). See generally Scamihorn v. General Truck Driver, 282 F.3d 1078, 1085 (9th Cir. 2002).

Conditions requiring multiple treatments includes any period of absence to receive multiple treatments (including any period of recovery from the treatments) by a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity (inability to work, attend school or perform other regular daily activities) of more than three consecutive calendar days in the absence of medical intervention or treatment. 29 C.F.R. � 825.114(a)(2)(v).

On the other hand, by way of example, routine physical, eye or dental examinations; treatments for acne or plastic surgery; common ailments such as a cold or the flu, ear aches, upset stomach, minor ulcers, headaches (other than migraines); and treatment for routine dental or orthodontic problems or periodontal disease generally do not qualify as serious health conditions. 29 C.F.R. � 114(b),(c).

This is not specific advice and does not create an attorney-client relationship. You should seek legal counsel to assist with your case and advise you regarding the applicable limitations periods and duty to mitigate damages.

Re: Rectroactive Family Medical Leave Act

In addition to Mr. Crispin's advice, I have a few notes to add.

One, you should be aware that there are regulations that govern what a medical certification can be required to contain. See 29 CFR 825.305 and 306. Section 305 is found at(http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.306.htm) and limits content. Section 306 can also be found at the site and describes when an employer can require medical certification in the first place.

An employer can generally require that the certificate contain �[t]he approximate date the serious health condition commenced, and its probable duration, including the probable duration of the patient's present incapacity (defined to mean inability to work, attend

school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom) if different.� 29 CFR 825.306(b)(2)(i).

From reading the reuglations you will also note that the Employer must give you a reasonable opportnuity to cure any defects in the medical certification.

Two, because you have a union and there is a governing collective bargaining agreement, you should consult legal counsel regarding the interplay between the agreement and the statute because the agreement may alter your rights.

Finally, you or, better yet, your union can always request information concerning the legal basis for the employer's allegation that more detailed information is required for the medical certification to be valid and for your time off to be designated as FMLA-protected. In other words, you can politely ask for legal proof in the form of a case, statute or regulation, citation [nomenclature that tells others how to find the legal authority cited] and an explanation of their rationale. This will at least help you uinderstand their thinking.

The general information provided does not create an attorney-client relationship. You should not rely on it in lieu of specific legal advice. There are limitations periods that may apply to bar your right to sue or otherwise pursue your claims. All plaintiffs have a duty to engage in reasonable efforts in order to mitigate their damages.