As many employers are keenly aware, the Family and Medical Leave Act (FMLA) permits eligible employees to take time off in continuous blocks as well as intermittently. Intermittent leave includes leave that is pre-approved to be taken in sporadic blocks of time or allows an employee to work less than the employee’s regular schedule. While the FMLA’s intent was to protect those who truly need time off in connection with an employee’s serious health condition, an employee’s family member’s serious health condition, related to expanding an employee’s family, or for military-related reasons, some employees have taken advantage of the FMLA’s intermittent time-off provisions, which makes it difficult for an employer to manage its workplace and contributes to negative worker morale. By managing all employees’ FMLA leaves, employers can reduce intermittent abuse.
Education is the key to effectively managing intermittent leaves. Many employers are not fully aware of the rights they have when an employee requests and/or has been approved for intermittent leave. As a start, managers and front-line supervisors should be aware of FMLA call-out requirements. For example, for an absence to be FMLA-protected it is generally not sufficient for an employee to simply call out stating that the employee is “sick.” Additionally, there are limits on when an employee is entitled to intermittent leave for a serious health condition. In addition, to qualify for intermittent leave, at certification (or recertification) time, an employer can require an employee to demonstrate that intermittent absences are both “medically necessary” and the need for leave can be best accommodated by an intermittent schedule. As an example, requiring an employee to demonstrate that a medical appointment cannot be scheduled outside of work hours may be permissible. Employers should also be knowledgeable about the proper tracking of intermittent leave, what documentation they have a right to obtain about the leave, quirky intermittent provisions that prohibit an employee from taking leave on an intermittent basis, and when an employer can transfer an employee on intermittent leave to another position.
The regulations promulgated under the FMLA also have specific provisions that set forth the circumstances under which an employer that thinks an employee’s use of intermittent leave may be inappropriate can obtain additional information to find out whether their concerns are warranted and the manner in which they may do so. For more information about how you can reduce the risk of intermittent abuse while still affording employees who warrant it intermittent time off, you can contact the attorneys at Skoler, Abbott. Skoler, Abbott also provides basic, as well as advanced, FMLA training for human resource personnel and management.