We work with HR departments all over the country, answering compliance questions everyday. Over time, we have come to recognize patterns and issues that seem to plague HR universally. One frequently raised issue: The incredibly painful intermittent FMLA. The DOL defines intermittent FMLA as leave taken in separate blocks of time for a single qualifying reason – or on a reduced leave schedule – reducing the employee’s usual weekly or daily work schedule.
Unfortunately, for many employers, intermittent leave can become a nightmare – often abused and difficult to manage. Fortunately, the FMLA regulations offer some tools for employers to discourage abuse and better monitor leave. Here are our top 5 strategies for curbing the misuse of intermittent FMLA.
1. Question the Original Certification.
If the employee’s use of intermittent FMLA is inconsistent with the certification, this gives you a good starting point for curbing the abuse, or stopping misuse of FMLA before it starts.
It is always worth double-checking that the employee was actually eligible for FMLA in the first place. Did he or she actually work 1250 hours in the last 12 months? Was the original certification sufficient to establish a serious health condition? Intermittent FMLA is often needed for chronic conditions that cause episodic rather than continuing incapacity. Check the certification: if the employee (or the employee’s spouse or child) was not seen or was not scheduled to be seen by a healthcare provider at least twice within 12 months, the leave may not qualify as FMLA.
2. Monitor Compliance with the Certification
The certification will set forth the frequency and expected duration of the “flare-ups” and you have a right to track intermittent leave to ensure that the employee’s use is consistent with the certification. If the employee’s use of leave exceeds what is outlined in the certification, let the employee know. If the employee feels that he or she needs additional leave, you can provide him/her with a new certification for the healthcare provider to complete. If the employee was using intermittent FMLA to fix his or her car, this will set the record straight.
The FMLA allows employers to insure that a certification calling for intermittent health-related absences is sufficient, valid and supports the need for intermittent leave. If you notice a pattern of absences that seem to occur at suspicious times like weekends and holidays, you should document it. Because evidence of a pattern of abuse is circumstantial, don’t jump the gun – document absences over a long enough period to be able to show a definite pattern.
3. Request Recertification.
The FMLA regulations offer a number of opportunities to seek recertification of the need for FMLA leave, including intermittent leave. Employees may be asked for recertification:
- Any time they seek to extend an existing FMLA leave;
- For long-term conditions or conditions that may require sporadic absences, an employer may request recertification every 30 days in connection with an absence;
- If the employee is taking a solid block of leave for more than 30 days, the employer may ask for recertification if the leave extends beyond the requested leave;
- If the employee is out on a leave that has been certified to extend for more than six months, the employer may seek recertification every six months; and finally,
- Employers may ask for a new certification at the beginning of each leave year.
If you are looking to request a recertification at the start of a new FMLA year, check first to make sure the employee actually worked 1250 hours in the previous year.
4. Follow up on changed or suspicious circumstances.
The FMLA regulations also allow employers to seek recertification more frequently than 30 days if:
- The circumstances described by the existing certification have changed; or
- The employer receives information that casts doubt on the employee’s stated reason for the absence or on the continuing validity of the certification.
“Changed circumstances” include a different frequency of duration of absences, increased severity, or complications from the illness. The regulations allow employers to provide information to the health care provider about the employee’s absence pattern and ask the provider if the absences are consistent with the health condition. Changed circumstances are the scenarios where you’ve noticed the employee’s FMLA call-ins are exceeding the absences noticed in the certification, and the employee indicates a need for additional leave. To mitigate risk, send the employee an email or letter first notifying him/her that the use of FMLA is exceeding the certification and that if more time is needed a new certification should be executed.
Information you receive about activities the employee is engaging in while on FMLA leave that are inconsistent with the employee’s health condition may cast doubt on absences. An example provided in the regulations is an employee playing in the company softball game while on leave for knee surgery. Again, it is important to look at the certification. It may be that the employee has a job that is precluded due to something like epilepsy, but other activities are allowed.
5. Make Sure the Employee Provides Appropriate Notice
The DOL regulations spell out that an employee is supposed to give the employer at least 30 days advance notice before using FMLA leave if the need for leave is foreseeable. If that is not practical because of a lack of knowledge or uncertainty about when the leave will need to begin or due to a change in circumstances or a medical emergency, notice is supposed to be given “as soon as practicable.” That means both as soon as possible and practical, taking into account all of the facts and circumstances in the individual case. At the very least, the employee is expected to comply with the employer’s call out procedure absent extenuating circumstances.
That’s our top 5. So, the next time you receive a request for intermittent FMLA leave, or have intermittent leave questions, ask yourself the following before you start banging your head on the wall repeatedly:
√ Is the certification complete and valid? When a certification has entries missing or is vague or ambiguous, you may ask the employee to provide complete and sufficient information. The request must be in writing and must specify the reason the certification was considered incomplete or insufficient. The employee then must provide the additional information within seven days. If the employee fails to provide the information, leave may be delayed or denied.
Even if the certification was initially complete, has the time period it covered expired? If you have concerns that the certification is not legitimate, HR may contact the health care provider to insure that he or she actually prepared the certification, and to clarify handwriting or the meaning of a response, but the employee’s direct supervisor may not be the one to make that contact. During this process be careful not to request more information than what is required to authenticate or clarify the form. This process can also be used at the recertification stage as well as with an initial certification.
√ Is the employee’s use of FMLA consistent with the certification? If not, address it immediately with the employee reminding the employee of the certification, and letting the employee know that if something about the health condition has changed and additional leave is needed, you will want to go ahead and obtain a new certification from the doctor.
√ Do you suspect abuse? If so – document and watch for patterns.
√ Are you enforcing your absence notification policy consistently? When an employee on intermittent FMLA is absent, don’t assume it is for an FMLA qualifying reason. Make sure they are following your call-in procedures and are not just leaving work whenever they feel like it. On the other hand, if no one else is expected to call-in, don’t just enforce these policies for those on FMLA.
√ Have you considered the American’s with Disabilities Act (ADA)? Any time an employee seeks FMLA leave for his or her serious health condition and indicates a need for ongoing treatment, it is important to consider whether the employee also qualifies as disabled under the American’s with Disabilities Act (ADA), and whether you may have an obligation to engage in the interactive dialogue and grant ongoing accommodations. As a reminder, the ADA requires employers to provide qualified disabled employees with accommodation absent undue hardship.
√ Do you need a gut-check? Call us. We can save you headaches and time, cutting through the confusion quickly. 508-548-4888 or firstname.lastname@example.org