Who is a Healthcare Provider for FMLA Eligibility?

Darrell VanDeusen
Darrell VanDeusen

No question, we are in a time of high anxiety.  Friends, family and pretty much everyone else I talk to has a story about how they are dealing with the new normal in the time of COVID-19.  We all need someone to talk through stuff with.  I suspect that many Employee Assistance Plans will see an uptick in use over course of 2020.

But does the person you talk to qualify as a health care provider under the FMLA?  A recent case from the Eleventh Circuit reminds us that there are statutory and regulatory limits.  Martin v. Financial Asset Mgmt. Sys., 2020 U.S. App. LEXIS 15425 (11th Cir. May 14, 2020).

The case affirmed summary judgment for the employer, so the facts were related in the light most favorable to the plaintiff.  “FAMS,” as it is known, is basically a collection agency.  According to Belinda Martin, her boss, CEO Jerry Hogan, was a terror at work.  He’d “scream profanities . . . kick chairs, throw bottles, and bang on the table” during feedback sessions with her, but not with her white male co-workers.

Martin, an African-American female who was the company’s director of operations, left an executive staff meeting crying and asked the company’s VP of Human Resources if they could talk.   Martin claimed that she said she thought she was being targeted because of her race and sex.  No one else supported that assertion, but it was undisputed HR told Hogan that Martin was going to “take some time off to think through the best way to take care of herself.”

The next day or so, Hogan (according to the HR folk) “launched into” a discussion of his “ongoing frustration” with Martin.  He then decided he was “done” with Martin and sent her a termination letter.  So much for the warm and fuzzies.

The issue for our purposes relates to Martin’s consultation with a licensed professional counselor about her work issues.  This counselor suggested that she follow up with a physician, but found her anxieties within normal limits and did not tell her to stay home from work or decide that Martin was incapable of working.

Martin challenged her firing as an FMLA violation.  She also claimed retaliation.  The district court granted FAMS summary judgment.   The Eleventh Circuit affirmed.  For FMLA purposes, the problem was twofold.  First, a licensed professional counselor does not specifically fall within the definition of healthcare provider under either the statute or DOL regulations. And, FAMS did not accept certification by a counselor for its health care plan.  Second, even if a counselor was someone who fell within the definition, Martin did not have a serious health condition – she was within normal limits of anxiety and had a depressed mood, but was not told to stay home from work.  Martin’s attorney asked for an “equitable” interpretation of the requirement.  The Eleventh Circuit found that, instead, he was asking for an “equitable revision” of the FMLA.  It rejected that effort.

So, let’s unpack this.  Stress and anxiety at work (or elsewhere) can be a serious health condition that precludes an employee from performing their job.  That includes when the stress and anxiety is caused by your boss.  But, the FMLA has specific requirements as to who gets to wear the healthcare provider hat and decide that the circumstances mean an employee cannot come to work, thereby potentially qualifying them for FMLA protected leave.   And that’s a good thing to remember as we embark upon reopening our workplaces, where individual anxieties and stressors will impact all of us to varying degrees.

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