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Intermittent FMLA leave

I have an employee who was just granted FMLA for Fibro and Depression. Now anytime he gets an ache or pain he just walks into my office and tells me that he needs to go home. I am enforsing out Time and Attendance policy regarding notification but is there anything else we can do in this situation?

The federal Family and Medical Leave Act (FMLA) entitles covered, eligible employees to take twelve workweeks in a twelve month period of unpaid, job-protected leave for specified family and medical reasons. Eligible employees are allowed to take FMLA leave for both unforeseen emergencies and planned absences involving the care and bonding with a newborn, adopted, or foster child; and to care for oneself or immediate family member with a serious health condition.

FMLA leave may be taken intermittently or on a reduced leave schedule under certain circumstances. Under FMLA regulations, there must be a medical need for such a leave and it must be that the medical need is best accommodated by an intermittent or reduced schedule leave. The medical certification submitted to the employer must address the medical necessity for intermittent leave and state the estimated frequency of the leave. If the initial medical certification doesn’t state the need for intermittent leave or if it’s determined that the employee’s absences substantially differ from what the certification states, the employer may request recertification to substantiate the need for more frequent and abrupt absences as intermittent leave.

Also, under the FMLA, employees must give reasonable advanced notice of the need for intermittent FMLA leave. Employers may remind employees of their notice expectations for FMLA leave and of company time and attendance policies. However, keep in mind the employee is relieved of the advanced notice responsibility if the need for such leave is unforeseeable such as when an individual with a serious health condition has a flare up of conditions.

As long as the absences are verified by the medical certification and covered under the FMLA, the employee cannot be disciplined for them. However, if the employee is unable to provide a medical certification substantiating the need for intermittent leave under the FMLA, the absences, tardiness, and early departures are considered unexcused and normal disciplinary procedures should be followed. If this ends up being the case, it’s important to have clear documentation given to the employee stating that the absences are not covered under the FMLA. It would also be a good idea to have a documented conversation with the employee ensuring he is aware the absences are not covered and he will be subject to disciplinary actions if further unexcused absences occur.

Remember to count all of the leave time used by the employee. Employers may account for FMLA leave in the shortest period of time that their payroll systems use, provided it is one hour or less.


This entry was posted on Tuesday, April 8th, 2014 at 1:33 pm and is filed under
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2 Responses to “Intermittent FMLA leave”

  1. Danny Says:

    This has a high potential for abuse. I recommend that you have regular certifications by his doctor and emphasize the frequency and duration portions. Any certification that is “as needed” can be considered vague and insufficient according to the FMLA laws. We had a case like this and made sure the doctor made an educated estimate based of her condition and the medical history. The only way it works is if you’re on top of each and every absence. This is nothing new, but is part of the regs. Good luck.

  2. hrlady Says:

    Hi Danny,
    You’re right. Intermittent leave has the highest potential of abuse. Requiring thorough and clear certifications as well as informing employees of company policies and administering them consistently are very important. Keep in mind that once the employee submits an initial certification verifying his need for intermittent leave any continued requests for further certifications or doctor’s notes for the same medical condition may be viewed as excessive and inappropriate by the DOL. Thus, scrutinizing every absence is crucial in avoiding abuse of FMLA rights.

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