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FMLA Intermittent Leave: Headaches and Heartburn

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Administering the Family and Medical Leave Act (“FMLA”) is challenging in general and employers continue to rank certifications of and tracking FMLA Intermittent Leave among the most difficult human resources challenges they face. This article will clarify the intricacies of Intermittent Leave and offer tools to assist employers in effectively handling problematic FMLA Intermittent Leave issues.

BACKGROUND

Enacted in 1993 and revised in 2009, the Family and Medical Leave Act (“FMLA”) provides employees of qualifying employers with up to 12 work weeks of unpaid leave for most qualifying reasons.1 The leave can be taken in large chunks of time, or can be taken as a single day or even a single hour.2 

FMLA leave is unpaid; however an employer may require an employee to use accrued paid vacation leave, sick leave, personal leave, etc. for some or all of the FMLA leave period. Employers may choose to require that paid leave run concurrently with FMLA leave so employees are not left with additional leave opportunities once they exhaust their FMLA leave.

CALCULATING FMLA LEAVE

An employee’s actual work week is the basis for determining leave entitlement. For example, if an employee works 50 hours per week, s/he is entitled to 50 (hours worked per week) x 12 (weeks of leave) = 600 hours of leave to be taken as a whole or incrementally. If an employee’s work schedule fluctuates from week to week such that it is not possible to know exactly how many hours s/he works per week, the FMLA allows for leave entitlement to be calculated based on an average of how many hours the employee would have worked in the prior 12 months if the employee reported to work for every hour scheduled.3
   
IDENTIFYING LEAVE AS “FMLA-QUALIFYING”

The FMLA allows employers to require medical certification from employees requesting FMLA leave. Employers should use Department of Labor forms WH-380E Certification of Health Care Provider for Employee’s Serious Health Condition for medical certification to ensure the employer is not requesting information that may run afoul of the FMLA or other related federal or state statutes.4
 
Employees have 15 days to complete and return the medical certification form. If an employee provides a form containing incomplete or ambiguous answers, an employer may ask for additional/complete information. An employer should list in writing the unanswered/vague/incomplete responses to questions posed on the medical certification form, and provide the employee seven (7) additional days to correct the deficiencies.5 If after 7 days the employee is not able to adequately address the issues raised in writing by the employer, the employer may contact the medical provider directly in order to get a complete answer to questions posed on the form. Additionally, an employer may contact the medical provider directly in order to obtain clarification and/or authentication of information provided on the medical certification.6 Such contact by the employer should be made by a medical professional working for the employer, an HR professional or a leave administrator. Contact with the employee’s medical provider should not be made by the employee’s direct supervisor.

Additionally, if an employer wants to verify or challenge the certification documentation provided by the employee, the employer may ask for a second opinion. The second opinion may be provided by a health care professional of the employer’s choosing, as long as the health care professional is not employed by the employer or utilized by the employer on a regular basis. Additionally, the employer must pay for the second opinion. If the initial certification and the second opinion differ, the employer can require a binding third opinion under the same conditions in which it obtained the second opinion.

RECERTIFICATION

In general, the employer may request the employee to provide a recertification no more often than every 30 days and only in connection with an absence by the employee.The employer may request a recertification in less than 30 days only if:

  • the employee requests an extension of leave, 
  • the circumstances described by the previous certification have changed significantly, or 
  • the employer receives information that causes it to doubt the employee’s stated reason for the absence or the continuing validity of the existing medical certification.8 

When requesting a recertification, the employer should provide the health care provider with the recertification form9 and a list of the employee’s claimed FMLA-qualifying absences, so the health care provider can confirm the absences are consistent with need based on the stated medical condition, as well as provide updated information regarding the medical condition.

A DOCTOR’S NOTE FOR EVERY ABSENCE?

While the FMLA may not support an employer’s ability to require a physician’s note for every FMLA-related absence, an employer may follow its own policy requiring an employee to provide a doctor’s note in accordance with its paid leave policy. Thus, if the employer’s leave policy requires the employee to take his/her paid vacation/personal/sick leave concurrent with FMLA leave, the employer can require a doctor’s note for any absence that occurs before the exhaustion of the paid leave - provided the employer has established such a requirement under its normal leave policies.

KEEPING TRACK OF FMLA INTERMITTENT LEAVE

HR professionals and leave administrators should partner with direct supervisors to log FMLA leave taken by employees. Some employers use tracking software, calendars or spreadsheets to track the type of leave taken (for an employee’s own qualifying condition or for that of a family member), the amount of time away from work that qualifies as FMLA leave and the amount of time remaining in the employee’s FMLA “leave bank.”  Open communication among HR, supervisors and employees is critical in accurately logging and tracking FMLA-qualifying leave.

ADDRESSING LINGERING CONCERNS OF FMLA INTERMITTENT LEAVE ABUSE

Where certification, recertification and tracking of FMLA leave fail to curb suspected Intermittent Leave abuse, lawful video surveillance may be one way to stop such abuse. Lawful surveillance is that which is conducted by a third party, consists of photographs and/or videotape without accompanying audio, and is taken of the employee in public.

Surveillance can be tricky to pull off and comes with some expense. Social media monitoring may provide a cheaper and easier alternative, especially when so many of us post our every move on Facebook, Instagram, Twitter and other social media outlets. Employees who claim they have FMLA-qualifying conditions such as limited mobility or other medical restrictions may “blow the whistle” on themselves by posting vacation photos, or photos capturing them “dancing the night away” at the local night hotspot. Several states have passed legislation making it illegal to require an employee to provide his/her social media passwords; however, employers generally can monitor employees’ internet usage at work on company equipment. Additionally, employers can monitor social media activity if access to the information is legally obtained.

Employers should refrain from acting hastily when acquiring information/documentation that calls into question an employee’s claim of FMLA leave. Employers should first investigate the situation, including speaking directly with the employee, before considering taking disciplinary action against an employee.
 
CONCLUSION

FMLA Intermittent Leave can cause headaches and heartburn for many employers. The development of solid leave policiestraining managers on the fundamentals of FMLA and their associated responsibilities, and providing human resource professionals training on the intricacies of FMLA administration are keys to consistent and compliant leave application. If used diligently, consistently and in strict accordance with federal regulations and company policy, the tools outlined above will provide relief.


1The Family and Medical Leave Act of 1993, as amended

2FMLA leave may be taken in increments of less than one hour if employers allow other types of leave to be taken in similar increments.

3See 29 CFR 825.205(b)(3).

4DOL Form WH-380F is the form to use for certifying an employee’s leave to care for a family member.

5U.S. Department of Labor, Wage and Hour Division, “Fact Sheet #28G: Certification of a Serious Health Condition under the FMLA,” (Feb. 2013).

6See CFR 825.307.

7See 29 CFR 825.308.

8See U.S. DOL Fact Sheet #28G, p. 4.

9The “recertification form” is an updated DOL Form WH-380.