One of the biggest employer complaints about the Family and Medical Leave Act (FMLA) has long concerned the productivity problems caused by employees’ use—and abuse—of intermittent leave, according to a U.S. Department of Labor (DOL) report.
The problem: Employees with chronic health problems often take FMLA leave in short increments and blocks of time such as an hour or less. Beyond that, intermittent leave can often be taken last minute, with little warning. That can create productivity, scheduling, and cost challenges.
This is especially true in time-sensitive industries like health care, public safety, and transportation. These unscheduled, intermittent leaves, the DOL report said, are “the most serious area of friction between employers and employees seeking to use FMLA leave ... no other FMLA issue even comes close.”
The DOL took a big step to help minimize workplace disruptions due to unscheduled FMLA absences in its revised FMLA regulations, which took effect in 2009. The DOL says that, in most cases now, employees who take intermittent FMLA leave must follow their employers’ call-in procedures for reporting an absence, unless there are unusual circumstances.
This is a benefit for employers, as it creates some structure around how employees can take leave, including recommendations to give employers advance notice when possible. However, it far from eliminates all of the friction. With that in mind, let’s take a look at some of the ways to navigate Intermittent FMLA leave.
Before diving into the specifics of Intermittent FMLA leave, let’s quickly review some of the essential aspects of the Family & Medical Leave Act. If you’re already pretty experienced with FMLA leave, feel free to skip ahead to the next section.
The Family and Medical Leave Act provides eligible employees of covered employers who have been on the job for at least one year, and worked at least 1250 hours in the last year, up to 12 weeks of unpaid, job-protected leave per year for the birth of a child, adoption, or foster care of a child; caring for a child, spouse or parent with a serious health condition; or for the employee’s own serious health condition when that condition means the employee cannot perform the essential functions of her job.
Employees who have close family members called to active duty also have unpaid leave time available to deal with such deployments. The amount of leave is capped at 12 weeks with various periods available for finding child care, attending military ceremonies, accompanying the service members for military R&R leave and so on. Up to 26 weeks of unpaid military caregiver leave in each 12-month period is available to care for a family member with a service-related illness or injury, including caring for veterans.
Not all businesses are subject to the FMLA, so before worrying about FMLA leave it’s important to make sure you’re a covered employer. The FMLA affects about 50 million workers in the private sector and 300,000 U.S. businesses, according to the Bureau of Labor Statistics.
Any company with 50 or more employees working within a 75-mile radius of the “work site” and “engaged in commerce” must comply with the FMLA. The courts have interpreted the term “engaged in commerce” so loosely that virtually all types of businesses meet the definition.
The regulations specifically bar employers from shifting employees from one work site to another to evade the employee limit. The 50 or more workers must be employed “for each working day during each of the 20 or more calendar workweeks in the current or preceding calendar year.”
Employees include full and part-time or seasonal employees. Because the FMLA looks backward a year, the number of employees in the current year can have fallen and the FMLA would still apply. Likewise, even if an employer had few employees the previous year, an increase in employees in the current year means workers otherwise qualified are covered.
If your company is owned by another corporation, how would you determine the total number of employees for compliance purposes?
The companies would be considered separate entities unless you met the “integrated employer” test. Four criteria are used to determine if two or more companies are an integrated employer according to Section 825.104c (2) of the FMLA regulations.:
Interrelation between operations
Centralized control of labor relations
Degree of common ownership/financial control
If you meet those tests, the employees of all the companies would be counted in determining whether you are covered by the law. The same employee count calculations apply to the use of temp agencies. Thus, an employer using temps from a temp agency could be covered if the employee count combined tops 50. Likewise, a temp agency’s assignment of workers to an employer can trigger FMLA coverage for the temp agency.
Eligible employees may take up to 12 weeks of unpaid leave during a 12-month period. Employees taking military caregiver leave may take 26 weeks of leave during a single 12-month period. DOL regulations require you to set a fixed 12-month period for all employees based on one of the following methods:
A calendar year;
A leave year such as a fiscal year;
A year mandated by state law;
A year starting on the anniversary of the employee’s date of hire; or
A rolling period, starting on the date the employee first took FMLA leave.
The last scenario, a rolling period, would prevent an employee from taking 24 weeks of leave at once—12 weeks at the end of one year followed by 12 weeks at the beginning of the next year. Employers should choose their preferred calendar year and incorporate it into the company’s FMLA policy. Employers may change their designation, but not in a way that causes an employee to lose leave. If you fail to designate an FMLA calendar year, employees may choose the most advantageous method for themselves.
Serious health conditions
Not every medical condition falls under FMLA protection. In order to qualify, a medical condition must be considered a serious health condition by the FMLA. The FMLA defines a “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves one of the following:
Inpatient (overnight) care in a hospital, hospice or residential medical care facility, including any period of incapacity or subsequent treatment connected to inpatient care.
Absence Plus Treatment: A period of incapacity of more than three consecutive calendar days (including any subsequent treatment or period of incapacity relating to the same condition) that also involves one of the following:
Two or more visits to a health care provider. The first visit must occur within seven days of the first day of the incapacity, and both visits must take place within 30 days of the first day of the incapacity.
Pregnancy: Any period of incapacity due to pregnancy or for prenatal care.
Chronic Conditions Requiring Treatments: A chronic condition that extends over a period of time and requires periodic treatments by a health care provider. “Periodic visits” are defined as at least two visits to a health care provider per year. During that period, the incapacity may be episodic or recurrent rather than continuous. Examples include asthma, epilepsy, and diabetes.
Permanent/Long-Term Conditions That Require Supervision: A permanent or long-term incapacity due to a condition that may not respond to treatment. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer’s, a severe stroke, and the terminal stages of a disease.
Multiple Treatments (Non-Chronic Conditions): A permanent or long-term incapacity due to a condition that may not respond to treatment. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer’s, a severe stroke, and the terminal stages of a disease.
Multiple Treatments (Non-Chronic Conditions): Any period of absence to recover from or receive multiple treatments for restorative surgery after an accident or injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation), severe arthritis (physical therapy) and kidney disease (dialysis).
You are not required to give FMLA leave for certain types of care, such as a facelift, acne treatment, or orthodontia—at least in theory. But if the employee spends time in a hospital to get a facelift, the person can demand leave time under the FMLA because of a subordinate clause in the regulations excluding medically unnecessary treatment “unless inpatient hospital care is required.” Routine medical exams are explicitly excluded from FMLA coverage, as are most procedures that aren’t medically necessary.
Similarly, parents staying home with a child who has a cold cannot take FMLA leave. A cold is not a serious health condition. However, if the child is recovering from a car accident after being in the hospital, then the parent can take FMLA leave to care for the child. Substance abuse may qualify as a serious health condition if it meets certain criteria.
For example, substance abusers may take leave under the FMLA but only for substance abuse treatment that is administered by a health care provider. If an employee is absent from work because of a substance abuse problem, instead of treatment, you do not have to grant him or her FMLA leave. And remember: Treatment for substance abuse does not mean you cannot take disciplinary action—including termination—against the employee. As long as your policy on substance abuse is the same for all employees and is communicated to all of them, you can take action. But you cannot discipline an employee because he or she has exercised the right to take FMLA leave for treatment.
Employees are generally entitled to take intermittent leave for medical treatment or for other medical reasons, whether it be for the employee or for a family member. For example, an employee can take two hours of leave twice a week for medical appointments or several days at a time spread over six months for chemotherapy. In short, he can opt to work part-time, and you can deduct the time he is absent from his 12-week FMLA eligibility.
Someone who works four days instead of five can do so for a total of 60 weeks before exhausting his FMLA leave time. By that time, the employee may also be eligible for a new 12 weeks of FMLA leave.
In most cases, such leave gives well-intentioned employees the ability to balance work, personal medical problems, and attending doctor appointments. However, this can also be abused by someone who’d rather work a four-day week.
That’s why, when concerned about FMLA abuse, you should ask for recertifications and exercise your right to seek a second or third opinion. You may also transfer an employee who needs to take intermittent leave to an alternative position that would cause fewer disruptions to your operations. The transfer must be temporary, and pay and benefits have to be the same as the initial position.
Intermittent FMLA leave call-ins
Employees who are absent for an FMLA-covered reason such as using intermittent leave are still required to provide their employers with enough notice to show need for FMLA leave. Most employers expect the employee to call in before the beginning of the shift, mentioning FMLA leave. But what happens if you count the absence against the employee because she only reported that she was ill?
Unless you have a call-in protocol that allows you to convincingly argue she didn’t provide enough information, it’s her word against yours. Before terminating an employee under these circumstances, make sure you have the original voicemails. A good policy is to retain voicemails if the absences are noted as unapproved.
Here’s how that worked out in a recent case. Jennifer suffered from migraine headaches and her employer had approved intermittent FMLA leave for migraine-related flareups. She worked as an assembly operator, a job that depended on good attendance. The company had a call-in protocol that required Jennifer to call in and leave a voicemail for all unplanned absences and to include a statement indicating if she would be taking intermittent leave if she was missing work for a migraine.
She claimed that on July 21, she left a voicemail stating she had a migraine. She did the same for two other missed days. Jennifer was fired for missing those days. She sued and the company said she never mentioned migraines and therefore wasn’t using her intermittent leave.
The individual tracking callins testified that she would listen to the voicemails and write down in a steno book what they said. In this case, that transcriber said that Jennifer had only mentioned being ill. Apparently, the voicemails were then deleted. Because there was a dispute over what had actually been said, the court ordered a trial. (Holladay v. Rockwell Collins, No. 3:17-CV-00078, SD IA 2019)
Tracking Intermittent FMLA
Tracking is a key component of managing intermittent leave. Employers may count leave in the smallest unit that their time-tracking system allows for nonexempt, hourly employees.
For exempt employees, leave can be taken in increments as small as one-half days. (FMLA regulations allow employers to reduce pay for unpaid leave without destroying an employee’s exemption under the Fair Labor Standards Act.)
Whatever time measurement is used, it’s still a fractional portion of a day. Employers are responsible for keeping track of the total amount of leave used. Inform employees of the amount of leave they have available at the start of each leave period.
Caution: Don’t automatically terminate employees right after they use up their entire 12 weeks of FMLA leave. First, determine if the employee may be considered “disabled” under the ADA. That may entitle the employee to more time off as an ADA “reasonable accommodation.” This is often the case when just a short period of additional time off is necessary for recuperation.
When employees have chronic conditions and their certifications call for 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.
When a worker requests intermittent leave or a reduced schedule for foreseeable medical treatment, you can require the employee to try to schedule the treatment so that it’s least disruptive to your business, such as making appointments after work. But you can only ask the employee to go so far. While the ADA does give you some leeway by not requiring you to provide an accommodation if it creates an “undue hardship” on your business, there’s no such standard for FMLA leave. You can’t refuse FMLA leave when workers are entitled to it or force them to return early from an injury for light-duty work.
It’s important to immediately nail down the expected frequency and duration of 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.
However, it’s important to keep in mind that unexpected situations can occur. For example, a chemotherapy patient may have properly estimated time needed for treatments. However, complications may arise that require them to attend additional unforeseen appointments. In such cases, it may not be possible for them to easily schedule around existing work activities.
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.
Intermittent FMLA certification & recertification
Not all FMLA requests must be accepted at face value. The law gives employers the right to ask for certification, verifying the employee’s need, from the employee’s doctor. If you’re unconvinced, you may also ask for a second, and even third opinion. However, doing so it at the employer’s expense.
Additionally, you can request new medical certification from the employee at the start of each FMLA year.
What happens if employees use their initial FMLA certification to take intermittent leave in a noticeable pattern of Friday and Monday absences? You can seek recertification to verify the person’s continuing need for time off.
The law says you can request recertification “on a reasonable basis.” If the certification form doesn’t specify a time limit, you can typically request recertification no more than once every 30 days.
Tip: If you receive information that makes you suspect FMLA leave abuse, you can ask for recertification more frequently. Fortunately, a recent DOL opinion letter says that a pattern of Friday/Monday absences counts as information that casts doubt on an employee’s stated need for FMLA leave. That means you can seek recertification more frequently than every 30 days, as long as the request is made in connection with an absence.
Monitor employees on leave
Sometimes, FMLA leaves just don’t “feel right.” As we’ve said, maybe it’s a Monday/Friday pattern or some other conspicuous reason. Courts consistently have upheld employers’ rights to monitor employees on FMLA leave. Similar to workers’ comp cases, employers that believe employees are abusing their FMLA leave can call and check to make sure sick employees are resting at home. Employers may even choose to hire private investigators to look for signs of FMLA abuse. Employees who are found to be abusing leave can be disciplined in accordance with your organization’s policy.
However, be careful about the conclusions you draw. If an employee had knee surgery and is seen on a hiking trip, that’s a red flag. But, there’s no reason that same employee couldn’t spend time recovering from surgery laying on the beach.
Likewise, seeing a sick employee at the store doesn’t mean they’re going on a shopping spree and playing hooky. They may need to pick up medication, food, and other goods to help with their recovery.
Use the calendar-year method to tame the intermittent-leave beast
Employees who take 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 FMLA leave for a chronic condition. If she is eligible for leave at that time (because she has worked for the employer at least one year and has worked more than 1,250 hours in the preceding 12 months), 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.
Case in point: Candice Davis worked for Bell Telephone and suffered from chronic depression. She had many unexcused absences and was close to termination for violating the company’s attendance policy.
By September, she reached the 1,250-hour threshold (she had already worked for the company for more than one year) and became eligible for FMLA leave.
She asked her therapist to certify that she suffered from a chronic serious health condition that required intermittent leave. The phone company granted her FMLA request, and she missed work periodically through the fall because of episodes of depression. Then she didn’t return to work after taking intermittent leave at the end of December.
The company terminated her for violating the attendance policy. She sued, alleging she hadn’t used up all 12 weeks of her intermittent leave.
The 6th Circuit Court of Appeals rejected her claim. It reasoned that employers that use the calendar method could start the FMLA process over at the beginning of the year. She would have had to meet the 1,250-hours eligibility requirement on Jan. 1. She didn’t because of her absences in the preceding year. (Davis v. Michigan Bell Telephone, No. 07-1512, 6th Cir.)
Use of the medical certification process is the biggest weapon employers have in combating potential fraud under the FMLA. 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.
If the medical certification is incomplete, specify in writing what information is lacking and allow the employee at least seven days to cure the deficiency. If the employee fails to do so, deny the leave request. Of course, if the medical certification doesn’t support the existence of a serious health condition, you should deny the request.
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.
7. Request recertifications as often as the law allows. The frequency of recertification permitted will differ depending on the type of leave and the type of serious health condition.
8. Require accrued leave to run concurrently with FMLA leave when allowed by law. When an employee realizes that taking leave today will affect future vacation time, he or she is more likely to take FMLA only when the need is legitimate.
9. Ask the physician to verify that the medical certification is exactly as he or she signed it and has not been altered.
10. Inquire about the intended method of transportation if an employee requests to leave work early because of his or her own serious health condition. If the employee can’t work, perhaps an ambulance is needed.
11. Aggressively pursue potential fraud, and if concrete evidence of fraud is discovered, take appropriate disciplinary action. Always follow up on reports from fellow employees or other sources that the employee does not, in fact, need leave.
Final note: Even if these actions uncover no fraud, your efforts will still reap dividends. Once employees become aware that you intend to use these tools to detect fraud, employees otherwise inclined to take advantage of the FMLA will wait until a legitimate need arises.
Here’s a sampling of questions on managing FMLA intermittent leave, submitted by readers of Business Management Daily and answered by employment law attorneys.
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.
Q. One of our employees, who recently immigrated to the United States, is pregnant. She has informed us that she expects to take eight weeks of FMLA leave immediately after the child is born. Then after a few months, she would like to return to her home country to visit with family for a month. In other words, she wants to split up FMLA leave into an eight-week period and a four-week period. Can FMLA leave for a new child be split up in this manner?
A. The first question to ask is whether the employee, if she’s a “recent immigrant,” has worked long enough (one year) to qualify for FMLA coverage.
Assuming the employee is in fact eligible for FMLA, your question raises an issue relating to intermittent leave. DOL regulations do not require an employer to grant intermittent leave for childbirth. An employer may, of course, voluntarily agree to permit the employee to split up her FMLA leave. It’s also important to make sure that the reason the parent is requesting intermittent leave is only because of the birth of her child. If the leave were required because either the mother or the child had a serious health condition, the law would allow taking the leave in two or more parts.
Applicable regulation can be found at 29 C.F.R. 825.203(e).
Q. We have an employee with a chronic condition. We granted her intermittent FMLA leave provided she gave 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.
Q. We have an employee with a chronic health condition who began taking FMLA intermittent leave in February. She had worked more than 1,250 hours in the 12 months before the leave started. By June, she had dropped below 1,250 hours. Does she lose her eligibility now?
A. According to the DOL, employees need to satisfy the 1,250-hour eligibility test only once during the 12-month FMLA leave year. That point is at the start of a series of intermittent absences, if all involve the same FMLA-qualifying serious health condition.
The employee remains entitled to FMLA leave throughout that 12-month period, even if the 1,250-hour calculation is not met at some later point in the 12-month period. Eligibility isn’t recalculated until 12 months have passed from the first intermittent-leave absence.
Q. An exempt employee recently requested intermittent FMLA leave. The employee will be out of the office approximately 12 hours each week to undergo treatment for a serious health condition. FMLA leave at our company is unpaid. Can we deduct from the employee’s salary for absences of less than a day and still classify her as exempt? If so, how do we calculate how much FMLA time the employee is using?
A. If an employee is otherwise exempt under the Fair Labor Standards Act, providing unpaid FMLA leave will not cause her to lose her exempt status. That means you may deduct from an employee’s salary for hours taken as intermittent leave without affecting exempt status.
How do you calculate the amount of leave taken? An employee is entitled to 12 weeks of leave. It’s not legal for an employer to reduce the total amount of leave just because it’s taken intermittently.
Therefore, if the employee normally works 50 hours in a given week, and she misses 12 hours during the week for FMLA reasons, the employee has used 12/50 of a week, or 0.24 weeks. As another example, if the employee normally works 45 hours per week, but misses nine hours in a given week for FMLA reasons, she has used 9/45 of a week, or 0.2 weeks.
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.
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