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 of an hour or less. That can cause a productivity, scheduling and cost predicament, especially 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.”
In light of the revised FMLA regulations, including the recent legislation passed in response to the COVID-19 pandemic, make sure your organization’s policies and employee handbook are up to date, and revisit how you track FMLA intermittent leave.
FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) OFFERS NEW PAID LEAVE OPTIONS TO CERTAIN U.S. EMPLOYEES
Congress jumped into the coronavirus fight with a series of efforts to protect the economy and the American worker.
The first big action by Congress was the Families First Coronavirus Response Act (FFCRA) signed into law on March 18, 2020. It says employees affected by the coronavirus pandemic will be eligible for paid sick leave and many will be able to take paid FMLA leave.
The law says many employers will be required to provide up to 80 hours of paid sick leave to some workers. Paid family leave will be available to many employees who cannot work because their children’s school or day-care facilities has been shut down because of coronavirus.
The law, which took effect immediately, also provided federal funds for enhanced unemployment insurance and free coronavirus testing.
Generally, the law applies to employers with fewer than 500 employees. Employers with 50 or fewer employees would not have to provide emergency sick leave or paid FMLA leave if they apply for an exemption.
Ultimately, the federal government will pick up the tab for the cost of providing leave benefits mandated by the law. However, employers will have to pay those costs up front and then recoup them through a system of tax credits.
Emergency paid sick leave
Employees are now eligible for 80 hours of paid sick leave if:
Employees who take paid emergency sick leave are eligible to receive up to $511 per day if they miss work because of their own illness. There is a $200-per-day cap if they need time off to care for someone else. Employees who are telecommuting do not qualify for paid sick leave.
Paid FMLA leave
Passage of the Families First act marks the first time the federal government has authorized paid FMLA leave.
Employees can receive two-thirds of their regular rates of pay (with a cap of $200 per day) for up to 10 weeks. However, paid FMLA leave is available only to employees who need leave so they can stay home with children whose schools or care facilities are closed due to coronavirus.
Employees must have been on the payroll for 30 days to be eligible for paid FMLA benefits.
REVISED FMLA REGULATIONS: 9 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 FMLA 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.
“The new rules drastically changed the way much of the FMLA works,” said Matthew Effland, an employment law attorney with Ogletree Deakins in Indianapolis. “Some changes favor employers by offering greater flexibility in administering leave. But it’s imperative that HR professionals … have updated their policies so they don’t inadvertently violate the law.”
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 related to military service.
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. The FMLA leave of the employee (a spouse, son, daughter or parent of the military member) must be related to certain qualifying circumstances related to the military service. The rules define a qualifying situation as one involving: (1) shortnotice deployment; (2) military events and related activities; (3) child care and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities; and (8) additional activities in which the employer and employee agree to the leave.
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 updated 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.
Note: An employee’s “direct supervisor” is prohibited from making such inquiries. The rules give this right only to a “health care provider, a human resources professional, a leave administrator (including third-party administrators) or a management official.” Also, employers can’t ask doctors for information beyond what is required by the certification form.
5. Employer notice obligations. In addition to conspicuously posting a notice about your FMLA and complaint-filing procedures, you must provide the same notice in your employee handbooks (or distribute a copy of your FMLA policy upon hire).
Employers now have five business days—instead of two—to send out FMLA eligibility and designation notices to employees.
6. Less leeway for employees’ notice. Previously, the law was interpreted to allow employees to give notice of their need for FMLA leave up to two business days after being out on FMLA leave, even if they could have given notice earlier.
But the updated rules say that, in most cases, employees who take intermittent FMLA leave must follow the employer’s regular call-in procedures for reporting an absence, unless there are unusual circumstances.
7. Settlement of past FMLA claims allowed. The rules clarify that employees can retroactively (typically as part of a severance or settlement agreement) volunteer to settle their FMLA claims with their employers without getting court or DOL approval. Prospective waivers of FMLA rights will continue to be prohibited.
8. Light duty doesn’t count as FMLA leave. The rules make clear that the time employees spend performing “light-duty” work does not count toward their 12 weeks of FMLA entitlement. (This was included because at least two courts had ruled that employees used up their 12 weeks of FMLA leave while on light-duty assignments after FMLA leave.)
9. Perfect-attendance awards can be denied. Employers can deny perfect attendance awards to employees who take FMLA leave (and thus are absent) as long as they treat employees taking non-FMLA leave the same way.
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 FMLA 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 FMLA leave.
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.
Key point: 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.
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.
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.
Here are four tips on certifying 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 that 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.
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. Or, you can require the employees to contact you when they leave their homes during sick leave.
Employees who are found to be abusing leave can be disciplined in accordance with your organization’s policy.
CAREFULLY TRACK LEAVE
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.
SNIFF OUT SUSPICIOUS FMLA REQUESTS: AN 11-STEP PLAN
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.
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.
USE THE CALENDAR-YEAR METHOD TO TAME THE FMLA 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: 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.)
Final note: Wait until the end of your FMLA leave year to get the new intermittent-leave certification.
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.
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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