Human Resource Blog

Intermittent FMLA

Our employee works a part-time schedule of Tuesday-Thursday. She continues to schedule her appointments on those days instead of on Monday or Friday and does not give adaquate notice (policy in her department is 2 weeks in advance). Is there anything we can do?

You can have a conversation with this employee, and require documentation of every doctors appointment, but you probably cannot deny her FMLA if she is entitled to it.

However, there is some doubt in our mind whether this employee even qualifies for FMLA or not. If she works 8 hours 3 days per week, that is only 1,248 hours in 52 weeks. An employee must have worked 1250 hours in the past 12 months to qualify for FMLA. Time worked for FMLA purposes does not include time off for FMLA, vacations, sick leave, etc. You may want to double check whether this employee was entitled to FMLA in the first place. (Or, she may be entitled to leave under a state law — you do not mention your state.)

We will assume for the sake of discussion that she is entitled to FMLA.

Ideally, an employee on FMLA should try to schedule medical appointments at a time that is mutually convenient and should give the employer as much notice as possible. However, there are not penalties built into FMLA for not following those procedures.

One thing that we have all learned from the Shirley Sherrod situation is that there are at least two sides to every story. Sit down with this employee and have a calm, sympathetic discussion of the problems. Listen to her point of view and get her agreement on a workable solution.

Have a discussion with the employee in a non-threatening way. Let her know that you are concerned about her condition, and value her as an employee. Ask if the appointments can be scheduled on a different day. (Some doctors only have office hours on Tuesday, Wednesday and Thursday, or she may need to schedule appointments on days that she has childcare.) Ask her to give you as much notice as possible of appointments. (In some cases, she may need to see a doctor on short notice.) This may require you to be proactive, and ask her each time she takes FMLA when her next appointment is. Come to an agreement on how this will be handled in the future, but be aware that if she is entitled to intermittent FMLA, you cannot deny her that right.