Managing Intermittent Leave

These administrative tools for managing intermittent FMLA leave will not serve as a panacea for the problems caused by such leaves, but judicious use of such tools can deter and mitigate some of the abuses that employers frequently encounter.

Monday, May 24, 2010
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Intermittent leave under the Family and Medical Leave Act (scheduled or unscheduled leave taken in separate blocks of time) and, to a lesser extent, reduced schedule leave (a shortened workday or workweek) have created enormous administrative burdens for employers as well as opportunities for abuse on the part of those employees who choose to engage in unscrupulous behavior.

Although there is no convenient antidote to the problem of intermittent FMLA leave, the new FMLA regulations, which became effective in January 2009, coupled with sound attendance-control procedures, can go a long way in curbing abuse.

Tighten FMLA Policies on Intermittent Leave

An employee is only entitled to an intermittent or reduced-schedule FMLA leave when it is medically necessary to care for a seriously ill family member, the employee's own serious health condition, a seriously injured or ill member of the armed forces or because of a qualifying exigency involving a service member on active duty.

When leave is taken after the birth or placement of a child, intermittent or reduced-schedule FMLA leaves may only be used if the employer agrees to permit such leaves. FMLA policies should therefore clearly state either that intermittent leave following the birth or placement of a child are a matter of employer discretion or that such leave will not be permitted.

Don't Forget to Make Eligibility Determinations

An eligibility determination (whether the employee has been employed for 12 months, worked 1,250 hours in the previous 12 months and works at a location employing 50 or more employees within a 75-mile radius) can only be made once in a 12-month leave period with respect to all related intermittent absences involving the same FMLA-qualifying serious health condition.

Employers, however, should re-evaluate whether an employee on intermittent leave is eligible for FMLA leave at the beginning of each 12-month period. If, for example, an employee's absences during the previous 12-month period cause his or her hours worked to dip below 1,250, continued intermittent FMLA leave can be denied, at least until the employee has worked the requisite 1,250 hours.

Enforce Call-Off Procedures

The new FMLA regulations significantly change the prior rule that an employee had two business days, absent extenuating circumstances, to notify the employer of an unforeseeable FMLA leave or FMLA-related intermittent absence.

The prior rule made it nearly impossible for employers to enforce reasonable call-off procedures when employees taking unplanned intermittent FMLA leave failed to report their absences in a timely fashion.

Employees must now provide notice of the need for unforeseeable leave as soon as practicable, which ordinarily means within the time prescribed by the employer's usual and customary call-off procedures. Accordingly, employers can now enforce call-off procedures that require the reporting of absences prior to the start of shifts, absent unusual circumstances that prevent the employee from complying.

If an employee does not comply with the employer's usual notice and procedural requirements for reporting and requesting unforeseeable leave, and no unusual circumstances justify the failure to comply, FMLA leave may be delayed or denied.

Moreover, such an employee can be disciplined, as long as the discipline does not discriminate against employees taking FMLA leave.

When in Doubt, Inquire Further

Employees need not state that they are seeking an FMLA leave or use any magic words when reporting an FMLA-related absence. The employee -- or the employee's spokesperson if the employee is incapacitated -- must simply provide the employer with enough information about the reason for the leave to permit the employer to designate the leave as an FMLA leave.

If the employee does not provide enough information to permit the employer to designate the leave as FMLA qualifying, the employer has a duty to inquire further of the employee to obtain additional information about the purpose of the leave.

Calling in "sick," however, without providing additional information, will not suffice to impose the duty to "inquire further" on an employer.

Employers should take advantage of the duty to "inquire further" when a called-in intermittent FMLA-related absence is vague. Follow up with calls to the employee if the only information provided is, "I'm taking an FMLA day," or the like.

Ask such employees why they are off, whether they are visiting a healthcare provider and if not, why not, what their symptoms are and how long they plan to be off. Alternatively, when an employee returns from an intermittent absence for which a vague call-in occurred, question the employee on why he/she was absent, whether he/she visited a physician, what his/her symptoms were, etc.

Not only do such inquiries potentially curb abuse by letting the employee know that the employer is paying close attention to his/her absences, but the inquiries help determine whether a particular absence truly qualifies as intermittent FMLA leave and should be counted as such.

Use the Medical Certification and Recertification Processes

When employees seek intermittent or reduced-schedule FMLA leaves, require them to provide a medical certification, even if the need for the leave seems obvious. Although the need might be obvious, the frequency and duration of the need for intermittent absences often is not. New medical certifications can be required at the beginning of each 12-month FMLA period.

Carefully review medical-certification forms to ensure that they are filled out completely and include information on the frequency and duration of episodes of incapacity, the number of days an employee will require treatment, the interval between treatments and the likely period required for recovery.

If the information on the medical certification form is not complete, use the Department of Labor's Designation Notice (DOL Form WH-382) to require the employee to obtain the missing information. Consider the use of second and third opinions when dealing with intermittent leaves, both initially and each time the employee has to renew the medical certification.

Note, however, that obtaining these opinions can be costly, and they often prove unhelpful given the limited interaction the second and third healthcare providers have with the employee.

Employers may now contact the healthcare provider directly for the purposes of authenticating and clarifying medical certifications, and they do not need the employee's permission in order to do so. In making the contact, the employer may use a healthcare provider, an HR professional, a leave administrator or a management official, but the employer cannot use the employee's direct supervisor.

Keep in mind that "authentication" means providing the healthcare provider with a copy of the submitted certification and requesting verification that the information in the form was completed and/or authorized by the healthcare provider who signed the document.

"Clarification" means contacting the healthcare provider to understand the handwriting on the certification form or the meaning of a response. Employers cannot request additional information beyond the certification form or medical records from healthcare providers in order to approve FMLA leaves.

In appropriate circumstances, recertification of intermittent FMLA leave may be a tool for limiting abuse. When there are suspicious circumstances surrounding an intermittent leave (e.g., a pattern of Monday/Friday absences or more frequent absences than were anticipated in the original certification), it is permissible to provide this information to the healthcare provider in seeking a recertification, and the provider should be asked whether such a pattern of absences is consistent with the employee's serious health condition.

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Remember that employers may not seek second and third opinions for medical recertifications.

Manage Foreseeable Intermittent Leaves

When an employee is taking foreseeable intermittent leave for planned medical treatment, employers can place the employee in an alternative position that better accommodates the employee's need for FMLA leave. This transfer option is not available when employees take unforeseeable intermittent FMLA leave.

Keep in mind that, although the alternative position need not have equivalent duties, the employer may not reduce the employee's benefits, and at the end of the leave, the employee must be restored to his or her former position or an equivalent position.

Employees taking intermittent FMLA leave for planned medical treatment must make a reasonable effort to schedule the leave to not disrupt the employer's operations. Accordingly, when employees plan to be absent for doctor's appointments, question them on the duration of the appointment and how long it takes to get to the doctor from the workplace. Very few doctor's appointments take all day or even half a day.

Unless there is a medical reason for not doing so, require the employee to work until the appointment and to return after the appointment. Second- or third-shift employees should be required to schedule doctor's appointments, including those for children, parents or spouses with serious health conditions, during their off hours unless there is a medical necessity for the appointment to occur while the employee is at work.

Counting Intermittent Leave

The previous FMLA regulations provided that there was no limit on the size of an increment of intermittent leave. Employers were required to calculate leave increments based on the shortest period of time that their respective payroll systems used to account for absences or use of leave, provided it was one hour or less.

Since many employers track time in tenth of an hour increments, intermittent FMLA leave had to be tracked under the old regulations in the same tiny increments.

In addition, many employers found that employees with certain types of intermittent FMLA leave for chronic conditions, such as migraine headaches, began using these leaves to excuse intermittent instances of tardiness.

Instead of referencing payroll systems, the new FMLA regulations provide that employers must use an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave, provided that it is no greater than one hour and only tracks the amount of leave actually taken.

The one-hour minimum does not apply where it is "physically impossible" for an employee who uses intermittent or reduced schedule leave to commence or end work midway through a shift. Examples of such situations would be airline, bus or railroad personnel or laboratory personnel who are unable to enter or leave a sealed laboratory during certain periods of time.

Under these circumstances, the entire period that the employee is forced to be absent counts against the employee's FMLA leave, but only until the employee is able to meet up with his/her flight, bus or railroad or enter a sealed laboratory.


David B. Calzone, secretary, founder, director and shareholder at Vercruysse Murray & Calzone, P.C., has nearly 30 years of experience practicing on behalf of public and private sector employers in the areas of employment discrimination, labor litigation, labor arbitration, appellate litigation, and complex/class action litigation.

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