OFT1

After having a conversation with a friend of mine I had to rethink something. Do Airlines report your FMLA and medical leaves directly to the FAA? I never would have believed this was a thing until this conversation but he believes they do. Seems like it would violate hippa right?

rickair7777

I don't know of any legal or regulatory reason that they would have to do that. I'm also not sure the law prevents them from doing it either... FMLA is considered employee records, not healthcare records. Pretty sure the FMLA paperwork has no medical details, the doc just certifies that you're FMLA eligible.

https://www.shrm.org/resourcesandtoo...relatedin.aspx

I do know for fact that information which is incidental to your health but does not include details about your health can be shared. Example: FAA cross-checks VA records for people who get VA disability payments. Ditto for SSA. So the fact that you get disability payments is clearly not HIPAA protected, and I doubt the fact that you took FMLA is protected either. Also I'm pretty sure that employer FMLA paperwork does not contain actual medical details, other than the fact that you have a qualifying condition.

I would most certainly not attempt to take FMLA for something which you do not intend to report to the FAA, way too much paperwork hanging out there to hang you if it ever comes to light. If the condition qualifies for FMLA, you probably can't legally fly with it.

My amateur read on this is that there's no reason the company can't tell the FAA that you took FMLA. Unless there's some state/local involved. Probably no good reason that they should either, but that doesn't mean they can't.

Also... there's 45 C.F.R. § 164.512 which is exemptions for HIPAA. One of those is if public safety might be endangered. That would apply in the case of perhaps a pilot who the provider had reason to believe was either suicidal or subject to sudden incap, but was flying illegally. This does NOT allow the provider to report any and all medical conditions to the FAA, they are going to need reason to believe that the public is endangered. Other than that, it's the pilot's responsibility to self-ground and deal with the FAA. Without knowledge that the pilot is actually likely to fly with a dangerous condition, the provider is bound by HIPAA. Some over-zealous docs have gotten sued for doing this (I'd sue if some doc turned me into the FAA just for having a medical condition).

Excargodog

Here is a long discussion on the topic:

Medical Privacy versus Public Safety in Aviation | Journal of the American Academy of Psychiatry and the Law

Without really saying much, since it involves both psychiatrists and lawyers…

beis77

I wouldn’t worry about FMLA. Even if reported, who cares? FMLA (family medical leave act) is normally used by employees to take unpaid leave in support of a family member that needs care (since most jobs won’t let you use sick leave to take care of family members).

So even if it were reported to the FAA, if one were out on FMLA taking care of a sick loved one, it wouldn’t necessarily have any bearing on one’s medical whatsoever. And I haven’t heard of folks (at least not pilots) taking FMLA to tend to their own illnesses - that’s what sick leave, short and long term disability is for. I really think worrying about FMLA is a nothingburger, unless you’re using it on yourself. And again, there may be better options available, since FMLA is unpaid.

rickair7777

Yes pilots can and do use FMLA for their own illness. In some states you get paid first out of state disability before touching your own sick/vacay so that's a great big incentive right there. State disability is "free" since you already paid the premiums whether you wanted to or not.

The fact that you *might* use FMLA to care for a family member does not mean that the FAA could not pull the thread if they wanted to. Not sure why they'd want to or why an airline would want to report stuff to the FAA which is not mandated but I certainly wouldn't take FMLA for a condition which you intend to hide from the FAA (hiding medical issues from the FAA is a very bad idea regardless unless it's just between you, your dog, and the fencepost).

JohnBurke

There is no mechanism nor rationale for an airline to use it's resources to report FMLA use to the FAA. None. Your friend is an idiot.

FMLA use is an administrative issue within a company; it is a requirement to allow leave without penalty. It is related to pay, insurance longevity, and the security of one's employment. It has nothing whatsoever to do with the FAA. There is no requirement, nor mechanism attached to FMLA which requires it to be reported to the FAA. There is no reason why any employer would report it to the FAA. There is no reason why the FAA would make note of it, were it reported. There is no standard within the FAA which tracks or records FMLA, nor is there any aspect of the FAA medical certification that tracks or records FMLA use.

The FAA does not care if you take FMLA leave. The FAA does not care if you take vacation time to go on vacation. The FAA does not care if you use your sick days to go fishing, or stay home with a cold. There is no FMLA database maintained by the FAA, nor is there a central FMLA reporting database anywhere, that the FAA could look, or to which an employer might report; the FAA would have no reason to look, nor would the FAA care as there is no regulation within CFR Title 14, that covers FMLA use or ties it in any way to the FAA.

Making such a report would be an added time and expense for an employer. That alone would discourage a employer. That the FAA does not collect or maintain such information would further discourage an employer. That there is no requirement, is further reason why an employer would not report FMLA leave to the FAA.

If an employer, for some bizarre, unfounded reason were to elect to commit time and resources to add to it's employees many responsibilities, to report FMLA to the FAA, what would the FAA do with that information? Put it on a sticky note and make a shrine? There's no database into which it could be entered. There's no place in a medical record for it? It doesn't warrant enforcement action. Use of FMLA doesn't violate a regulation. FMLA use does not imply a medical condition, or provide any information other than a given period of time has been taken off work. This is of no interest to the FAA. The FAA has no vested interest in the paperwork, record keeping, or classification of this information. The notion that the FAA would receive the information, use the information, collect the information, or do anything other than ignore it, is idiotic. The FAA also doesn't care what color shirt you wear, whether you go to the movies or dinner with your spouse, what kind of car you drive, whether you get a ketchup stain on your white shirt, or how many donuts you eat in a twenty minute period. Reporting any of those to the FAA would have the same value and impact, as reporting FMLA time taken at work. The FAA does not care.

Stop listening to your friend. S(he) needs help.

Not remotely true. There are many reasons why one might take FMLA time, but might still fly with that same condition. The issue of reporting to the FAA is separate, but if one has a reportable condition and doesn't report it, one is in violation of the regulation, FMLA not withstanding. Whether one takes FMLA time or not is irrelevant: if the FAA learns of the unreported condition, or more specifically, if one has failed to report a condition which requires reporting, and has not disclosed this on one's medical application at the next visit (or sooner, if required), then that is the violation. Not the use of FMLA. FMLA does not point to the undisclosed condition, nor provide a roadmap to discovery, nor raise a red flag that might trigger an investigation.

One might have plantar faciitis, and fly with that condition; something like one in four adults do have it to some degree. One might eventually require, or desire surgery to relieve the condition or pain and take FMLA for that period of time, or simply take sick time, or simply bid a schedule around it. None of these violate the regulation. None preven the pilot from flying. At the conclusion of the surgery, the event need not be reported until the next medical application. One can keep flying, right up until the surgery, and after, so long as s(he) is able. FMLA use does not change that.

If one elects to violate the regulation by filing to report, FMLA doesn't make the event more discoverable or give cause to go looking, nor does the FMLA have any connection to the violation. The violation isn't the medical condition, nor the time off, nor the surgery, nor flying with the plantar faciitis. It's the failure to report, and that violation exists and is punishable regardless of FMLA time taken.

hercretired

No, they do not.

rickair7777

My point being that for a hypothetical pilot who has a medical condition which he does not intend to report to the FAA, FMLA papertrail is another risk of either discovery or will he;p the prosecutor prove his case. Hypothetical, not recommended by any means.

Some states (mine for example) grant disability payments with FMLA. The FAA has already sent forks to jail for collecting various flavors of disability for unreported conditions. So they are looking at that. They might even be able to look at FMLA filings, absent protected medical details.

JohnBurke

The FAA doesn't have a prosecutor, nor need one. Under the regulation, one is guilty until proven innocent. It is, after all, administrative law. The FAA does not need to prove its case. The FAA takes enforcement action before any trial, and any subsequent review by an administrative law judge only comes after the penalty is applied; at that stage, the FAA need only support its case and defend the action that it has already taken. To the point: the first opportunity that an airman has to defend himself is after conviction: the FAA takes the administrative action (eg, suspension or revocation), and then the airman may appeal. There is no trial to determine if the administrative action is warranted, or if the airman is indeed guilty, until after the FAA has already taken action.

Accordingly, the FAA doesn't need a "prosecutor" to go after the airman, nor does the FAA need to use FMLA to demonstrate that the airman has failed to report a condition. FMLA use does not point to a condition, surgery, injury, event, illness or otherwise; it is simply this: time taken off of work.

What the FAA is concerned with is the failure to report. FMLA does not make that case. The absence of a reported condition is prima facie: the lack of reporting is 100% proof of the violation: lack of reporting is absolute. The only other useful supporting evidence of that violation is determination that a reportable condition occurred. FMLA does not show that. FMLA speaks to nothing. The FAA does not require a record of FMLA time taken. The FAA requires, in addressing an appeal by an airman (but not in applying the penalty before hand), a means to show that the condition, surgery, doctor visit, injury, etc, existed. FMLA does not show that. FMLA does not prove that. It's nothing more than an administrative time off from work. It does not make the case.

There no no case of an FAA investigator scouring an operators administrative HR records for FMLA time, then chasing down that time to find out why it was taken, then cross-referencing that to the last airman medical application, or waiting with baited breath for the next one, in order to build a case against an airman. Anyone that imagines such subterfuge has far too much time on their hands, and reads far too many dime store crime novels. It doesn't even make good fiction.

rickair7777

I was referring to the criminal penalties associated with lying on your medical application. That requires a DOJ prosecutor and likely investigation by the FBI (FAA would be a party). Penalties include fines and federal prison, and they have sent pilots to jail for collecting disability while flying without disclosing the condition. Recently.

If you're talking about certificate revocation, yes FAA can do that unilaterally under admin law, with no prosecutor, grand jury, and little due process. But again I was talking about the criminal aspect, since that has gotten people sent to prison for undisclosed disability claims.

I would agree, but a few years ago people would have said the same thing about the FAA cross-referencing disability claims with pilot medical apps.

I don't think airlines are sharing FMLA info with the FAA. But there's no reason I can think of that they cannot, other than possibly being sued on nebulous grounds. But if you got busted and indicted for flying while medically unfit that might not evoke a lot of jury sympathy.

IMO more likely that the FAA would cross-reference disability payments, which can be associated with FMLA... since they've already done that, it's plausible.

But again, bottom line, it's stoopid not to report any medical condition for which any paper-trail whatsoever exists.