When an employee seeks intermittent leave under the Family and Medical Leave Act (FMLA), the employee is requesting to take leave for a single qualifying reason in separate increments of time rather than in one block of time (continuous leave). An employee may take intermittent leave for both planned and unplanned medical treatments and/or issues and for military exigencies.
Intermittent FMLA leave opens the door for abuse by employees and makes it difficult for employers to prevent such abuse. In order to prevent abuse, employers need to follow through on the FMLA's notice requirements and the employer's own policies and procedures. Since the leave may be erratic and unplanned, employers need to be extra vigilant when counting and tracking leave taken to ensure the employee does not take more leave than the amount to which they are entitled.
Employers may not interfere with an employee’s FMLA rights. Employer interference is not limited to denial of leave. It also includes penalizing an employee who uses FMLA leave or discouraging them from using such leave.
Employers should have clear written policies and practices for employees and managers to use before and during the FMLA leave period to help ensure compliance and easier administration. These policies should detail the employer’s policy, as well as its standard operating procedures related to requests and tracking.
What are an employee’s responsibilities when submitting a request for intermittent leave?
For foreseeable leaves (e.g., a scheduled surgery, medical treatments) employees must provide 30 days’ notice or provide notice as soon as practicable under the circumstances. The employee needs to provide medical certification by the employee’s health care provider to support the employee’s need for intermittent leave. The medical certification should outline the times intermittent leave might need to be taken and how many days a month this absence could occur. Additionally, an employee must make a reasonable attempt to schedule planned medical treatment so that it does not disrupt operations. This may include scheduling medical appointments or treatments during less busy parts of the workday or workweek, or scheduling appointments outside of work hours whenever possible.
For unforeseen leaves (e.g., an emergency surgery, medical treatment due to an accident or severe illness), employees must provide documentation as soon as is practicable. Employers need to be in communication with the employee (or the employee’s family), provide them with the required medical certification forms which must be completed and be sure to include the date that the medical certification must be returned.
FMLA regulations require employees to provide the completed medical certifications within 15 days of an employer’s request for certification, absent special circumstances. But that does not mean an employee’s certification must be accepted at face value. Upon receiving an employee’s medical certification, employers must ensure it is complete and provides sufficient information to understand the employee’s leave requirements. If it is not complete, responses are vague or unresponsive, or there are questions as to whether the form was completed by the health care provider, request the employee obtain the missing information, clarify the unclear responses and/or validate the certification. If the employee fails to provide missing information, the certification is incomplete and leave may be denied.
If the employee fails to clarify or validate the certification, the employer may to reach out to the employee’s medical provider, or designate another person (but not the employee’s immediate supervisor) to reach out to the employee’s medical provider only in the following circumstances:
To validate the medical certification - an employer can send the employee’s health care provider a copy of the medical certification for verification that the form was properly completed and/or authorized by the employee’s provider. No other information can be requested on the employee’s medical condition.
To clarify the medical certification - we’ve all seen doctors’ handwritten notes or instructions that are illegible. To ensure proper understanding, employers can contact the provider to make sure they understand all of the employee’s medical certification. This could mean reaching out to a doctor to verify his or her handwriting or double-check that the employer has the correct understanding of the absence parameters and any duties the employee is unable to perform. No additional information can be requested outside of the clarifying questions.
What are an employee’s responsibilities when taking approved intermittent FMLA leave?
Approval of FMLA leave does not relieve employees of their duty to follow employer policies when they are able to do so. Employers have the right to enforce their regular call-in procedures when an employee is claiming an absence under intermittent leave. Specific information about when to call, who to call and what information employees must provide when reporting a leave of absence are all permitted and provide employers with good information to better manage employee leaves.
When employees call in to report a leave, make sure you obtain sufficient information to determine whether the leave qualifies for FMLA leave. To obtain that information, consider asking the following questions:
What are the specific reasons for your absence?
What job duties are you unable to perform?
Are you going to see a physician?
Have you previously taken a leave for this condition?
When do you expect to return to work?
Track Use Carefully
Proper tracking enables employers to provide just the right amount of FMLA leave their employees are entitled to, and it also can help employers detect patterns or trends that may suggest instances of misuse. For example, there might be certain days of the week, particular assignments, some departments or certain managers for which employees consistently take leave.
Proper FMLA leave tracking doesn’t just focus on tracking when an employee is on leave. There is no limit on the size of a leave increment, but an employer must account for the leave using an increment that is no greater than the shortest period of time that the employer uses to account for the use of other forms of leave, provided that:
it is not greater than one hour; and
the employer does not reduce the employee’s FMLA leave by more than the amount of leave the employee actually takes.
Employers can request recertification — which can determine whether FMLA leave should be extended or if a significant change in an employee’s leave usage is the result of a supported change in a medical condition. An employee’s recertification cannot be requested more often than every 30 days. If the initial medical certification indicates that the duration of the condition will last longer than 30 days, an employer must wait until that duration expires before requesting a recertification. However, employers are allowed to request a recertification every six months, regardless of the stated duration. An employer also can request a recertification in less than 30 days if one of the following applies:
The employee requests an extension of his or her original request.
The employee’s circumstances have changed significantly from the original certification. For example, if an employee was missing one or two days per month, then started missing 10 days a month.
The employer receives information that “casts doubt” on the reason for the leave.
Consider Obtaining a Second (or Third) Opinion
If an employer doubts the validity of a certification, the employer can request a second opinion. This second opinion has to be completed at the employer’s expense. If the second provider doesn’t agree with the initial certification, then a third opinion can be sought — which essentially serves as a tiebreaker between the original certification and the second opinion. The third provider must be designated by both the employer and employee, and the opinion of this third provider is final and binding.
Intermittent Absence Can Be Managed
Intermittent leaves can create challenges for managers by disrupting productivity. If a recurring medical condition is causing frequent intermittent leaves, you might be tempted to let the employee go, which may make you subject to fines and legal action. Instead, establishing a FMLA leave policy and procedures for you and your employees can go a long way to help ensure FMLA compliance within your company. In addition, for your employees requiring intermittent leave, consider whether workplace accommodations may be appropriate for those employees, to help them stay in good health and able to work.
Contact PMP if you have any questions about intermittent FMLA leave.