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When are chiropractors 'health care providers' under the FMLA?
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A little-known provision of the Family and Medical Leave Act (FMLA) makes treatment by a chiropractor different from treatment by almost any other health care provider. Let's take a closer look at that provision.
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What FMLA says about chiropractors
The FMLA allows eligible employees at covered employers to take leave for, among other reasons, a "serious health condition." A serious health condition can be either inpatient care at a hospital, hospice, or residential medical care facility or continuing treatment by a health care provider. If an employee wants to take FMLA leave for "continuing treatment," a "health care provider" is defined as a doctor or "any other person determined by the [secretary of labor] to be capable of providing health care services."
The secretary of labor has concluded that "other person[s] . . . capable of providing health care services" include chiropractors "limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist." A chiropractor who isn't engaging in treatment to manually manipulate the spine to correct a subluxation demonstrated by x-ray isn't a health care provider, so the treatment doesn't qualify as "continuing treatment by a health care provider." Consequently, unless the chiropractor meets the x-ray and diagnosis requirements, chiropractic treatment isn't covered by the FMLA.
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Courts interpret FMLA chiropractor provision strictly
There have been only a few cases in which employers have challenged medical certifications by chiropractors under the FMLA, but when the question has been litigated, courts have applied the terms of the regulations strictly.
In one case, the employer discharged an employee for excessive absences. The employee had sought FMLA leave for treatment by a chiropractor, but the chiropractor hadn't taken any x-rays at the time he certified the employee's health condition. The court held that because he hadn't yet taken any x-rays to demonstrate a subluxation, the chiropractor "was not acting as a health care provider within the meaning of the FMLA when he purported to excuse [the employee] from work" (emphasis added). The court therefore dismissed the case in favor of the employer. It also mentioned that the chiropractor eventually took x- rays (after the leave) that didn't show a subluxation. Olsen v. Ohio Edison Co.
The court faced a similar situation inanother case in which the employee was discharged for falsifying a timecard. She filed suit, alleging she was actually fired in retaliation for attempting to take FMLA leave. The trial court determined that although the employee's chiropractor, a Dr. Bristow, manipulated a subluxation, she had never taken any x-rays. The court concluded, like the court in the Olsen case, that "[b]ecause [the employee] must show that Dr. Bristow performed 'manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist,' and because Dr. Bristow did not take any x-ray . . . , the Court finds that Dr. Bristow is not a 'health care provider' within the meaning of the FMLA." It then dismissed the case, a decision that was upheld on appeal. Silcox v. Via Christi Okla. Reg'l Med. Ctr.
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In a third case, the court was less receptive to the employer's claim that chiropractic treatment isn't covered by the FMLA. The employee in this case was off work for more than two weeks. The first two weeks he missed were covered by medical certifications from two physicians; the last two days of his time off were covered only by a certification from a chiropractor. The employee admitted that he had never been x-rayed.
The employer considered the absences unexcused and counted them against the employee. A few months later, when another missed day put him over the limit for absences, he was discharged. The employer argued his absences weren't covered by the FMLA because he didn't have a serious health condition. The court held that the employer had waived that argument because it had never challenged the certifications provided by the two physicians and the chiropractor.
The court noted that the FMLA provides a mechanism for employers to challenge a health care provider's certification by requiring a second or third opinion. Because the employee's absence was covered by physicians' certifications, the court held that the employer's recourse should have been to challenge the certifications by requesting a second opinion or clarification of the ending date of the covered leave. The court also pointed out that the employer never told the employee that it considered the chiropractor's note insufficient because it wasn't supported by x-rays. Sims v. Alameda-Contra Costa Transit District.
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Maintain alignment with the law
Taking the three decisions together, we can create some best practices for dealing with employee absences for chiropractic care. First, the absence isn't covered by the FMLA unless the treatment is for manual manipulation to correct a subluxation that's demonstrated by x-ray to exist. The Olsen and Silcox cases indicate that the x-ray must be taken before the treatment; otherwise, the chiropractor isn't acting as a health care provider at the moment he purports to excuse the employee from work.
Second, employers should carefully explain the x-ray requirement to your employees, preferably before they take leave. That prevents an employee from arguing that you waived the objection to the missing x-rays.
Third, employers must be particularly careful when the employee is being treated by chiropractors in addition to other health care providers (like in the Sims case). If medical certifications from other health care providers demonstrate that he does have a serious health condition, follow the normal procedures for requesting a second opinion or for asking the employee to fix an incomplete or vague certification.
Absences certified by chiropractors are unique under the FMLA because chiropractors are the only health care providers whose capacity to excuse an employee from work depends on the diagnosis itself and the presence of x-rays. Careful adherence to the regulations and full communication of the leave requirements to employees can help you navigate the oddities of chiropractic care under the FMLA.
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Copyright 2009 M. Lee Smith Publishers LLC. INDIANA EMPLOYMENT LAW LETTER. INDIANA EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems, but rather to provide information about current developments in Indiana employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.
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