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Getting a handle on intermittent FMLA leave

May 8, 2013

Article courtesy of SBAM Approved Partner AdvanceHR

A key purpose of the Family Medical Leave Act was, of course, to accommodate the employee who has a genuine medical need for long-term leave, or intermittent leave. Unfortunately, like many areas of life, there are those who will take advantage of the law. If that happens to your company, your ability to operate profitably may be impaired. Keep reading to learn how to get a handle on this type of leave while ensuring that all staff members are treated equitably.

The Family and Medical Leave Act (FMLA) provides for intermittent/reduced schedule unpaid leave (subject to the same aggregate 12-week limit as straight leave or 26 weeks for military caregivers) under prescribed conditions. But intermittent leave is subject to occasional abuse. While employers covered by FMLA* cannot prevent it entirely, a variety of strategies can be used to limit inappropriate use.

Background: Intermittent/reduced schedule leave may be taken when medically necessary to care for a seriously ill family member, or because of an employee’s own serious health condition, and, with the employer’s approval, to care for a newborn or newly placed adopted or foster care child. Employees have to provide a certification of the specific medical need that may involve sporadic absences, then use the allotted time as required.

Common causes for use of intermittent leave involving the employee’s own health would include chronic medical conditions such as asthma or migraine headaches.

What would an abusive situation look like? Cynthia Blevins Doll, a partner in the Louisville office of Fisher & Phillips, says a classic “suspicious” scenario involves a Friday-Monday absence pattern. Another problem area, she says, “is the use of intermittent FMLA leave for absences not related to the [certified] condition.”

Cooperation on Scheduling Absences

Even in non-abusive situations, employers can take steps to limit the business impact of periodic FMLA-related absences. For starters, according to the Department of Labor (DOL) in its overview of FMLA, employees requesting intermittent/reduced schedule leave for foreseeable medical treatment “must work with their employers to schedule the leave so as not to unduly disrupt the employer’s operations, subject to the approval of the employee’s health care provider.”

When regular intermittent periods of leave would be disruptive, you may transfer the employee temporarily to another job “that accommodates recurring periods of leave better than the employee’s regular job,” provided the job has equivalent pay and benefits, says the DOL. You can also allow the employee to maintain his original job, but on a part-time basis.

What else can you do to keep the system running as intended? The goal is not to badger employees, creating an environment of distrust that will undermine morale and productivity. But if you do have reasonable grounds for concern, Doll offers a variety of tips, including the following.

1. Scrutinize the medical certification. If it is vague or incomplete, you are within your rights to have the employee provide all the required information. “The request must be in writing and specify why you consider the certification insufficient,” Doll explains. The employee has a week to furnish a more complete certification. Otherwise, a leave request can be turned down or postponed.

It is also possible for someone in your organization (other than the employee’s direct supervisor) or a healthcare provider to contact the medical professional who made the certification to validate that indeed she or he made the certification, or to clear up any ambiguities. But, if you go this route, it can’t be a fishing expedition. Only ask for what you need to address the specific issues at hand, Doll warns.

2. Request (at your own expense) a second medical opinion. You would only pursue this route, of course, if you still have doubts about the original certification after your follow-up inquiries. You can pick the physician, but it can’t be one you use on a regular basis. If the second opinion differs from the first, and the matter remains in dispute, you can (also at your expense) get a third opinion. That opinion would be binding.

3. Track absences to the specified condition. Employees may not always identify absences as “FMLA qualifying.” In that situation, “employers are losing the opportunity to count absences against the employee’s FMLA entitlement,” according to Doll. “The burden is really on the employer to have an eagle eye out for covered absences” for proper tracking. This requires close communication between you and front-line supervisors.

4. Enforce paid leave policies. You can incorporate into your FMLA policies a requirement that employees draw upon accrued paid leave during FMLA-protected absences. The rules are somewhat complicated (learn more about the issue here), but employers can require, if they have instituted such a formal policy, that employees begin using up accrued paid leave time when the clock starts ticking on the 12-week FMLA period “to prevent a situation where an employee can take paid leave after their FMLA leave expires and thereby extends a leave of absence beyond the FMLA entitlement,” Doll explains.

5. Obtain recertification of the need for FMLA leave. For situations involving long-term conditions that may include intermittent absences, if you have any concerns, you can request recertification at 30-day intervals, or when the employee requests to extend an existing FMLA leave, according to Doll. You can ask for recertification sooner than 30 days if the situation described in the original certification has changed, or if “you receive information that casts doubt on the employee’s stated reason for the absence or on the continuing validity of the certification.” But be careful not to use tips from co-workers who may have a hidden agenda, and always try to get more than one source of evidence, Doll suggests.

* In general, for private employers, FMLA applies to companies with at least 50 employees within a 75-mile radius. Employees, both full-time and part-time who have worked at least 1,250 hours during the current or prior calendar year must be counted toward the 50-employee threshold.

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