FMLA Intermittent Leave: Guideline #5
Readers' questions on administering FMLA intermittent leave
Here’s a sampling of questions on managing FMLA intermittent leave, submitted by readers of Business Management Daily and answered by employment law attorneys.
Can we look deeper into dubious FMLA intermittent leave?
Q. If an employee calls off intermittently for migraine headaches, how can we verify the real reason for the leave? Can we ask for information each time the employee is absent?
A. You’re certainly not the only employer to complain about employees taking advantage of intermittent leave. Many employers have struggled with employees whose conditions seem to flare up on Fridays and Mondays. There’s no way to stamp out this type of abuse altogether. However, you can minimize it by making sure that you promptly designate all time off—including intermittent leave—to help you exhaust the 12-week FMLA clock as quickly as possible.
Also, don’t accept FMLA certification forms that include blanket statements, such as “intermittent leave recommended.” You have the right to demand more specific information. If you have reason to be suspicious of a certification, you can send the employee to a company-selected physician for a second opinion.
Have your questions on FMLA intermittent leave answered by our expert Human Resources editors and Employment Law attorneys in FMLA Intermittent Leave.
Can we require certification every time an employee takes FMLA intermittent leave?
Q. We have an employee with a chronic condition. We granted her intermittent FMLA leave provided she gives us a certification each time she takes time off for the condition. We have to constantly remind her to turn in the form. She also won’t call HR when she’s sick but leaves a message with the front desk. This makes it hard to track her usage. Can we terminate her for refusing to follow the instructions laid out on the FMLA approval form?
A. It sounds like you are treading on thin ice. For chronic conditions, employers can request recertification no more often than every 30 days, and only in connection with an employee’s absence (unless you receive information that casts doubt on the employee’s stated reason for the absence).
Note: The DOL has said that an employee’s pattern of absences (e.g., taking Mondays and Fridays off for FMLA leave) may, by itself, cast doubt on the employee’s stated reason.
What can we do if FMLA intermittent leave goes beyond the doctor's estimate?
Q. An employee with asthma obtained medical certification for her intermittent FMLA leave. It said her expected absence frequency was three to five times per month. This month, she took six days off. Must we count the last day as intermittent leave, or can we rely on the upper estimate from her doctor?
A. If the employee is taking time off in excess of the estimated time, you should confirm with the employee why she is actually taking time off (i.e., her illness versus another reason). However, as long as the employee is taking time off for her FMLA-qualifying illness, you always should count the actual time without regard to any prior estimates by the physician or the employee.
The actual time off (not the doctor’s estimate) is what determines how much time the employee has left under the FMLA or other leave laws or policies. That said, if the employee’s requests for time off begin to significantly exceed the time stated on her original FMLA certification, you should ask for a new certification from her physician.