FMLA Intermittent Leave

5 guidelines on managing intermittent leave and curbing leave abuse under the new FMLA regulations

FMLA Intermittent Leave: 5 guidelines on managing intermittent leave and curbing leave abuse under the new FMLA regulations

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One of the biggest employer complaints about the Family and Medical Leave Act (FMLA) is the productivity problems caused by employees’ use—and abuse—of FMLA intermittent leave.

The problem: Employees with chronic health problems often take FMLA leave in short increments of an hour or less.

The Department of Labor (DOL) took a big step to help minimize workplace disruptions due to unscheduled FMLA absences in its revised regulations, which took effect in 2009. The DOL says that, in most cases now, employees who take FMLA intermittent leave must follow their employers’ call-in procedures for reporting an absence, unless there are unusual circumstances.

Business Management Daily, publisher of The HR Specialist, has designed this report to help you ensure that you're properly tracking FMLA intermittent leave, and your organization’s policies and employee handbook are up to date.


Revised FMLA regulations: 4 changes you must comply with

Since 1993, complying with the FMLA had always been complex, but at least the law (once you figured it out) stayed the same. But that all changed on Jan. 16, 2009, when the first major overhaul of the act took effect. The regulation update came after two years, during which the DOL received more than 20,000 suggestions on changes from employers and employee groups.

Here are the most important changes in the updated FMLA regulations:

  1. Military caregiver leave. Employees are allowed to take up to 26 weeks of unpaid FMLA leave in each 12-month period to care for family members who suffered a serious injury or illness while on active military duty.
  2. Leave for families of National Guard and Reserve members. Families of National Guard and Reserve personnel on active duty are allowed to take up to 12 weeks of job-protected FMLA leave per year to manage their affairs.
  3. Revised definition of a “serious condition.” The updated regulations tinker with the definition of an FMLA-qualifying “serious health condition.” The law says a serious condition must involve more than three full, consecutive calendar days of incapacity plus “two visits to a health care provider.” The rules clarify that those two visits must occur within 30 days of the period of incapacity.
  4. Direct contact with doctor allowed. Good news: The regulations allow employers to directly contact an employee’s health care provider to seek clarification about information on an employee’s FMLA certification form.

Learn how the updated regulations affect employer notice obligations, leeway for employees' notice, the settlement of FMLA claims, light duty under FMLA leave and perfect-attendance awards in FMLA Intermittent Leave.


Strategy tips: Tracking FMLA intermittent leave

Even though managing FMLA intermittent leave can be vexing, the law does give employers some tools to combat leave abuse.

As with leave taken in one block, employees requesting FMLA intermittent leave must provide you notice. Employees must give at least 30 days’ notice when their need for FMLA leave is foreseeable. When it’s not, they must notify you “as soon as practicable.”

Certify and schedule the leave

Don’t accept FMLA requests at face value. The law gives employers the right to demand certification from the employee’s doctor of his or her need for leave. You can request new medical certification from the employee at the start of each FMLA year. The law also entitles you to ask for a second or third opinion, if necessary, before granting leave.

When employees have chronic conditions and their certifications call for FMLA intermittent leave, you should attempt to work out leave schedules as far in advance as possible. It’s legal to try to schedule FMLA-related absences, but you can’t deny them.

Tip: It’s important to immediately nail down the expected frequency and duration of FMLA intermittent leave. You can insist on a medical provider’s estimate of how often the employee will need time off. You also can wait until the provider gives you that estimate to approve intermittent leave.

The best approach: Use the DOL's official certification form—WH-380e: Certification of Health Care Provider for Employee's Serious Health Condition. Then review the form to make sure it's complete before you approve intermittent leave.

Here are four tips on certifying FMLA intermittent leave requests:

  1.  Ask about the specific condition. Medical certification must relate only to the serious health condition that is causing the leave. You can’t ask about the employee’s general health or other conditions.
  2.  Give 15 days to respond. After you request certification, give employees at least 15 calendar days to submit the paperwork. If the employee’s medical certification is incomplete or insufficient, specify in writing what information is lacking and allow the employee seven days to cure the deficiency.
  3. If you doubt the need for leave, investigate the certification. Under the updated FMLA regulations, your organization can contact the employee’s physician directly to clarify the medical certification. Your contact person can be a health care provider, a human resources professional, a leave administrator (including third-party administrators) or a management official, but not the employee’s direct supervisor.
  4. If you’re still not convinced, require (and pay for) a second opinion. Use an independent doctor who you select, not a doctor who works for your organization. If the two opinions conflict, you can pay for a third and final, binding medical opinion.
FMLA Intermittent Leave: 5 guidelines on managing intermittent leave and curbing leave abuse under the new FMLA regulations

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Curb FMLA abuse: A step-by-step plan for handling suspicious requests

Use of the medical certification process is the biggest weapon employers have in combating FMLA abuse. It gives you the right to obtain information from the employee’s physician about the ailment and, at least for the first certification, to obtain a second or third opinion from an independent physician.

The following steps are important parts of an effective anti-fraud program:

  1. Obtain a medical certification for each request for leave due to a serious health condition. It’s important that your sick leave or attendance policy requires a doctor’s certification for all absences of three or more days for the leave to be excused. If there’s no such requirement and you intend to require paid leave to run concurrent with FMLA leave, you might not be able to require a medical certification, which is the first step in an anti-fraud program.
  2. Enforce a policy denying the leave request if an employee fails to submit certification within 15 days. In each instance, assess any appropriate penalties for failure to be at work.
  3. Examine the certification closely to ensure it’s been properly and fully completed. Many doctors will complete the form in a hurried fashion. In some cases, they’ll intentionally leave some sections incomplete in order to remain “truthful” while accommodating the desires of the patient/employee for leave.
  4. Require a second opinion if the circumstances are even slightly suspicious and it’s an original certification.
  5. Once the certification is approved, make a limited inquiry each time the employee requests more leave, particularly in the case of intermittent leave. The goal is to determine whether the leave is for the same qualifying reason.
  6. Watch the schedule of absences closely in cases of intermittent leave to determine whether a suspicious pattern develops (e.g., immediately before and after weekends or days off) or whether there’s a change in the frequency or timing. Such actions could suggest a change in condition that enables you to request a recertification.

Get more detailed advice on how to set up your FMLA anti-fraud program with FMLA Intermittent Leave.


Use the calendar-year method to tame the FMLA intermittent-leave beast

Employees who take FMLA intermittent leave can wreak havoc with work schedules. Because their conditions can flare up at any time, their absences are by nature unpredictable. But there are ways you can legally curtail intermittent leave.

One way is to use the calendar-year method to set FMLA leave eligibility.

Here’s how it works. Sometime during the calendar year, an employee submits medical documentation showing she will need intermittent leave for a chronic condition. If she is eligible for leave at that time, she can take up to 12 weeks of intermittent leave until the end of the calendar year.

Then the process starts again.

If, on Jan. 1, she hasn’t worked 1,250 hours in the preceding 12 months, she’s no longer eligible—and won’t be eligible again until she hits 1,250 hours.

Final note: Employees who are approved for FMLA intermittent leave can take that time off as needed. But that doesn’t mean you aren’t entitled to some supporting documentation for each absence. You can ask for proof that the absence was for the chronic condition—but a simple doctor’s note to that effect should suffice. No new formal certification is required.

Wait until the end of your FMLA leave year to get the new intermittent-leave certification.

FMLA Intermittent Leave: 5 guidelines on managing intermittent leave and curbing leave abuse under the new FMLA regulations

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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.

FMLA Intermittent Leave: 5 guidelines on managing intermittent leave and curbing leave abuse under the new FMLA regulations

Claim your FREE copy of FMLA Intermittent Leave: 5 guidelines on managing intermittent leave and curbing leave abuse under the new FMLA regulations!

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