By now, we’re all quite familiar with the Family Medical Leave Act (FMLA). That said, it’s always good to stay informed on how to boost your overall compliance, especially with the trickier elements of FMLA. Intermittent leave is one of the most common problems for HR managers throughout the USA. In fact, a Society for Human Resource Management (SHRM) survey found that tracking intermittent FMLA leave is either ‘difficult’ or ‘extremely difficult’ for 35% of respondents. So why is it so notoriously difficult to manage? And what can you do to support your compliance efforts?
Defining Intermittent Leave
Intermittent leave refers to breaking up one’s FMLA leave in various increments, such as taking several leaves at different points during a calendar year. Under the FMLA, one may take intermittent or reduced schedule leave under the following circumstances:
- When medically necessary to care for themselves or their family member’s serious health condition.
- For care of a newborn or a newly placed foster or an adopted child (only with the employer’s approval).
Seems clear enough, right? How many of you clearly understand what ‘medically necessary’ truly means? That’s where a lot of the ambiguity and confusion lies.
While there is no clear definition of this term, all that must occur for the intermittent leave to be approved is for the employee’s health care practitioner to indicate this is necessary on the form provided. If the leave is for a planned medical treatment, the employee is required to make an effort to schedule their treatments in a way that will be the least disruptive to operations.
So, why is intermittent leave such a pain to manage? Well, it’s notoriously difficult to track, especially without a leave management system. If you’re still relying on spreadsheets and your memory, you’re more likely than not to make errors along the way.
Another commonly cited challenge is the difficulty of calculating all the costs that are associated with an absence. There are many factors that must be considered, including what the administrative costs of managing the leave are, and the cost of replacement workers to pick up the slack. Management needs these kinds of insights to improve their organization’s efficiency, especially during high seasons.
An Intermittent Case in Action
In Tillman v. Ohio Bell Telephone Co., an employer discovered the ultimate procedure for terminating an employee on intermittent leave. Erik Tillman worked as a Communications Specialist for the phone company, often having to perform maintenance work and heavy lifting. This caused him to take FMLA leave for a back condition and depression, eventually prompting him to request intermittent leave. His employer started to recognize a pattern with how the intermittent leave was being used. For example, Tillman informed his supervisor in June that he would be taking off three dates in July, all of which happened to be Saturdays… something was clearly fishy here.
The employer sought out the help of a private investigator, who discovered Tillman was using his intermittent leave to run errands and do work in his garage, which was a red flag as to the authenticity of his back injury. They brought the evidence to an independent physician who confirmed that this footage did not align to what was described in the medical certification. After terminating Tillman, he filed an interference suit and lost, with the court stating that the employer was justified in its actions. This case proved to be a lesson for employers nationwide on how to properly terminate an employee who they suspect is abusing their FMLA intermittent leave.
Managing Intermittent Leave: Steps Forward
So now why you’re really here. How can you better manage intermittent leave? Here are a few tips:
- Talk to your employee and show compassion. By expressing empathy towards your employee or their family member, it will likely encourage your employee not to abuse their rights for leave. Ask if there are any ways you can help. Show that you are clearly paying attention to the fact that they are on leave, and they’ll know that it’s not something to take lightly.
- Consider temporarily transferring the employee. If you are worried about how the employee’s absence will impact your operations, you do have the right to temporarily transfer them to mitigate this. The benefits and pay must be the same, and the employee must be returned to their old job (or equivalent) when they come back from leave. Just remember to not treat it as a punishment, but rather a temporary move to maintain productivity.
- Strictly enforce the notice requirements of the FMLA, and have the correct protocol written in the employee handbook. If the leave is foreseeable, the employee should give 30 days notice.
- Ensure you request certification and recertification as often as you see fit. You can ask for an initial certification when FMLA is requested, and a new one each new leave year, if the reason for leave changes, or if additional leave is required.
- When in doubt, get a second opinion. If something doesn’t look right to you on the medical certification, ask your employee about it. If necessary, ask for recertification or a second opinion. Additionally, an HR Professional, Leave Administrator or manager may contact the doctor for clarification of the authenticity of the certification, though the employee’s direct supervisor is not permitted to do so.
- If you are within jurisdictions which allow it, and for reasons that are relevant, you can consider making it mandatory for employees to use paid leave time for intermittent leave. You are permitted to do so, though it should be clearly stated in your FMLA policy. But be sure not to alienate your employees in doing so.
Hopefully, these tips will have you managing intermittent leave with more confidence. Begin implementing a process that works for your unique organization, and trust that your employees will buy into the program.
Founded in 1987, Presagia has a long history of helping organizations solve complex business problems with easy-to-use solutions. Today, this means providing cloud-based absence management solutions that enable organizations to be more efficient, control lost time and risk, and strengthen compliance with federal, state and municipal leave and accommodation laws.