Intermittent, reduced schedule FMLA leave is challenge for many employers
Paige Hoster Good is a labor and employment attorney with McAfee & Taft.
The Family and Medical Leave Act provides eligible employees with the option of taking intermittent and reduced schedule leave instead of taking it all at one time. How does that work?
The Family and Medical Leave Act provides eligible employees with up to 12 weeks of unpaid, job-protected leave for qualified family and medical-related reasons. Such leave can be taken all at once — for example, to care for and bond with a newborn child or to recuperate following a major surgery — or on an intermittent or reduced schedule basis. Intermittent or reduced schedule leave is for a single qualifying reason, but may be taken at separate, recurring times. Examples include taking leave for scheduled appointments, such as a pregnant employee taking leave intermittently for prenatal examinations or a cancer patient taking leave for chemotherapy treatments, or for unscheduled reasons, such as treating episodic, chronic conditions that flare up unexpectedly.
What information does employers need to approve employee requests for intermittent or reduced schedule leave?
Employees taking FMLA leave must provide a medical certification that specifies, among other things, the condition requiring leave, the likely duration of the condition, medical facts to support the need for leave, planned treatment, and the frequency and duration of any recurring or intermittent absences. Once the employee has provided a satisfactory certification, the employer should approve the leave. Further, the employer may not require further documentation for each subsequent intermittent absence.
Are there any conditions under which an employer may require recertification?
Yes. An employer may require medical recertification every six months, and even sooner if the circumstances described in the certification have significantly changed. For example, if the medical certification states the employee will be need to be out two days a month for physical therapy, but the employee requests leave every week, the employer has the right request a recertification.
Are employers required to keep employees who are on intermittent or reduced schedule leave in their original job positions?
No. If an employee's leave is foreseeable and temporary, an employer has the right to temporarily reassign that person to another position that better accommodates recurring periods of leave. The alternative position must have equivalent pay and benefits, but can have different job duties. The transfer must not be so different from the employee's original job duties that it becomes a hardship on the employee. For example, a white collar employee should not be temporarily assigned to perform laborer's work. Employers must then reinstate the worker to their original position when the need for intermittent leave ends. Additionally, employers have the right to ask employees to schedule their planned treatments at times that will not unduly disrupt the organization's operations.
What are the challenges of administering intermittent leave?
Admittedly, handling requests for intermittent leave are trickier than most, even when the absences are planned. The biggest challenges come in the form of tracking the absences because they are in varying increments, including notifying employees what hours are being counted toward their bank of FMLA hours, retroactively designating and counting absences as intermittent, requiring recertification when justified, and identifying potential leave abuse. Unfortunately, intermittent leave is the most common type of leave that is abused, and it's up to the employer to investigate potential abuse.
What resources are available to help employers navigate this complex law?
While the U.S. Department of Labor website contains helpful forms and notices to assist employers, the FMLA remains one of the most complex and challenging federal employment laws with which to comply. Employers who wish to know more about effectively managing FMLA leave can sign up at www.mcafeetaft.com for a complimentary webinar scheduled for July 24.
Paula Burkes, Business writer