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Intermittent FMLA Leave: Some Tips to Prevent Abuse

  • By Steve Meilleur
  •  |
  • Jul 30, 2019
  •  |
  • Topics: FMLA

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 blocks of time rather than in one block of time. An employee may take intermittent leave for both planned and unplanned medical treatment or medical issues and for military exigencies.

Intermittent FMLA leave opens the door for abuse by employees and makes it more 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. Further, since the leave may be sporadic, 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.

Set A Procedure for Requesting FMLA Leave

To minimize disruption to its business, an employer should require employees to speak with their managers or designated representatives as indicated in company policy before taking intermittent leave for a foreseeable reason (e.g., planned medical treatment). To start the communication process, employers may require an employee to use the employer's FMLA Intermittent or Reduced Schedule Leave Time Request Form and other procedural requirements to request leave.

When the need for intermittent leave is foreseeable, an employer may require that an employee provide 30 days' advance notice before the leave is needed. If an employee fails to provide at least 30 days' notice when leave is foreseeable, then the employer may request information regarding why 30 days' notice was not provided. The employee must explain the reasons why advance notice was not practicable, such as a lack of knowledge of approximately when the leave must begin or a medical emergency.

If the leave is unforeseeable, then the employee must provide notice to the employer as soon as practicable under the situation's circumstances. Notice is usually practicable within the time frames established by the employer's customary and usual notice requirements. If the customary and usual notice requirements include an advance written request for leave, then the employee will be excused from that requirement until a later time when it is practicable for the employee.

Require Certification for Support Of An Intermittent Leave Request

If an employer requires the employee to submit a medical certification of the need for leave, it must include that requirement, and any consequences of a failure to provide certification, in the eligibility and rights and responsibilities notice to the employee.

The medical certification form is an important tool for managing intermittent leave. The certification form can be used to determine if intermittent leave is medically necessary and to curb abuse. An employer may request certification for the employee's own serious health condition and for a family member's serious health condition. Employers should ensure that the certification is complete and that there is enough information to show that intermittent leave is medically necessary.

Obtain Recertifications

Employers need to keep in mind that they should ask an employee to recertify the need to take intermittent FMLA leave for either an employee's own serious health condition or a family member's serious health condition:

  • No more than once every 30 days; or
  • After six months have passed since the original certification; or
  • If the employee needs leave for that reason after that six-month period has passed.

Further, there are several instances in which an employer may request recertification more frequently than once every 30 days:

  • The employee requests an extension of leave;
  • The circumstances described by the previous certification have changed significantly (e.g., with regard to frequency or duration of absences, the severity of the illness, or complications); or
  • The employer receives information that casts doubt on an employee's stated reason for the absence.

Require an Employee To Use Paid Time Off If Allowed

In addition to requesting certification and recertification, an employer can help curb intermittent leave abuse by requiring employees to use accrued paid time off (PTO). An employee is less likely to abuse FMLA leave if he or she has to burn up vacation time or paid personal days to do so. However, employers need to keep in mind that this is not allowed under certain circumstances.

Further, an employee may not use his or her PTO benefits first and then use his or her FMLA leave allotment, as doing so would permit the employee to take more than his or her FMLA allotment. Also, employers need to ensure that this practice is consistent with any company policy or handbook statement and must apply equally to non-FMLA leaves. Further, employers need to be sure they are in compliance with any state or local family leave laws before requiring an employee to take his or her PTO time.

Enforce FMLA Policy and Call-In Procedures

Another way to curb abuse is to require employees to call in whenever they are going to be absent. An employer can enforce call-in procedures requiring prompt notice of absences, as well as "no-call, no-show" policies, with employees who are otherwise qualified to take FMLA leave. Employees may be required to call a specific phone number and/or a designated person. Employers may address this in their FMLA handbook statement or policy.

Properly Track FMLA-Related Absences

To ensure that an employee is taking the leave to which they are entitled and not more, an employer must track and properly count FMLA absences. When calculating the leave, an employer must remember that when an employee uses intermittent leave, the basis for the leave entitlement is the employee's actual workweek, not a set number of hours that may be used for all employees (unless the employee is a flight crew employee).

To stay on top of an employee's FMLA-related absences, an employer should create a system to track intermittent leave and notify the employee when his or her FMLA leave entitlement is nearing exhaustion.

Consider A Temporary Transfer

An employer may temporarily transfer an employee to an alternative job that better accommodates recurring periods of intermittent leave than the employee's regular job. For this purpose, the alternative position does not need to have equivalent duties, but must have equivalent pay and benefits.

An employer must remember that temporary transfers are limited to foreseeable leave based on planned medical treatment or the recovery from it, not for unplanned medical treatment. Further, the transfer may not be used to discourage the employee from taking leave and must end once the employee no longer needs intermittent leave or the need for leave is no longer foreseeable.

Train Supervisors

An employee will often go to his or her direct supervisor with leave requests and issues, rather than to HR or the employer leave administrator representative designated to take leave requests and questions. A supervisor is also in the best position to gain knowledge from the employees he or she manages that may suggest a leave abuse issue. Therefore, supervisors need to recognize potential FMLA leave requests and potential FMLA leave abuse and when to involve HR or the leave administrator.

As a result, supervisors need to be trained to understand FMLA notice requirements. Once an employee puts a supervisor on notice of his or her intent to take leave, the supervisor should inform the designated leave representative. The supervisor should not discuss leave requests or medical conditions with other employees.

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