What is FMLA Intermittent Leave?

While many workers have heard of the 1993 law known as the Family and Medical Leave Act, they may not be aware that unpaid leave protected under the law can be taken intermittently.

What is FMLA Intermittent Leave?

First of all, FMLA intermittent leave must be authorized as such by a doctor. For example, if a worker is suffering from cancer and needs to receive treatment during the week, they may use intermittent FMLA leave to receive treatment, provided that treatment cannot readily be received at a less disruptive time.

FMLA leave can also be taken on a reduced-schedule basis, if medically mandated. So if the patient in the above example is physically drained by cancer and his treatment regimen, he may be able to work less than 40 hours per week without fear of losing his job. Being paid for those missed hours is not covered under the law.

What is FMLA’s Medical Standard for Accepting or Denying Leave?

For intermittent leave, an employer can ask for medical certification to validate that a worker needs intermittent time off from his or her job on a periodic basis.

This medical certification form, completed by a licensed doctor, must outline the basic cause for leave, how the worker’s absences will be structured, and the dates intermittent leave period is expected to span.
If a company disagrees with an intermittent leave designation, it can pay for a second or third medical opinion from a qualified provider not on the company payroll. A company can also ask for a recertification on a reasonable basis, or if there is reason to believe that circumstances related to leave have changed.

Intermittent Leave Case Study

In the case of Hansen v. Fincantieri Marine Group, LLC, James Hansen had originally been granted intermittent leave due to severe depression. However, once his absences became more frequent, his employer eventually terminated him and claimed Hansen violated its attendance policy.
Hansen was employed by Marinette Marine Corporation, a Wisconsin-based company that built ships. Marinette's attendance policy called for 'points' to be accumulated for unexcused absences. One point is given for missing greater than four hours of an appointed workday, and a point drops off one year after it was received. A worker's accumulation of 10 or more points within a 12 month period leads to termination. The company had retained a third party, Matrix Absence Management, to administer its attendance plan.

Hansen accumulated nine points when he missed work for May 3 through May 6 and again on May 9. On the first day he missed, Hansen asked for leave under the FMLA due to his major depression symptoms. On May 11, Marinette acquired a medical validation from Hansen’s doctor that said his affliction would cause periodic episodes that would keep him from carrying out his job functions.

The doctor’s validation explicitly said that Hansen could not focus on his duties because of his depression and the likely period of time for these flare-ups was about every 6 months, lasting 2 to 5 days.

Subsequently, Hansen asked for FMLA leave for May 23, May 31, June 1 and June 13 through 15. He was given FMLA leave for all of those absences. He then asked for FMLA leave for June 22 and 27. Matrix, the administrative company, initially rejected those requests, but the shipbuilder overruled and granted the leave.

Hansen then asked for FMLA leave for July 1, which was his eighth instance since being certified for intermittent FMLA leave. Due to the fact that Hansen’s sequence of episodic leave was beyond what his doctor had certified, Matrix sent the doctor a fax saying that the July 1 absence surpasses frequency and period of time for the leave. The fax requested that the doctor to “please confirm item #7.” However, this was the incorrect item on the validation form.

The administration company was most likely wanted confirmation on item 8, which discussed the projected frequency and time of episodic flare-ups and the period of the associated inability to work. The doctor, not knowing the mistake, responded by stating, “Item #7 confirmed.”
As a result, Matrix rejected Hansen's leave request..

Hansen also asked for FMLA leave for a ninth and a tenth episode. Matrix rejected these requests because Hansen’s frequency had been exceeded. The attendance points Hansen sustained due to these absences raised him to 13 points.

On July 22, the shipbuilder fired Hansen for breaking its attendance policy. In firing Hansen, it stated that he had “exceeded (his) frequency” under the validation laid out by his doctor, which had projected he would be absent four times every 6 months. The shipbuilder also told Hansen that Matrix had contacted his doctor and there was no alteration in his status.

Four days after Hansen was let go, his doctor sent both Marinette and Matrix a message stating that Hansen’s condition for intermittent leave should cover the rest of 2011. The letter was also revised and item 8 changed to raise the regularity of episodes to once a month, with period of time lasting two to five days per instance. The letter didn’t make reference to Hansen’s July absences. Despite the letter, Marinette didn’t retract its decision to terminate Hansen.

Hansen then pursued legal action, arguing that Marinette was guilty of FMLA interference and retaliation against him for taking leave. A district court stated that no determination of any right to FMLA leave could be determined because a medical doctor did not provide expert testimony to indicate that his significant health condition made him unable to carry out his job. Hansen then appealed the district court's decision.

The appellate court rejected the shipbuilder’s argument that Hansen needed a medical expert to establish that he couldn’t work due to serious health condition as he has provided certification from his doctor. In other words, Hansen was allowed to miss work even though he wasn’t necessarily being treated during his absence.

The court also rejected the employer’s claim that that Hansen’s absences did not match what his doctor had estimated in the certification. The medical form included a ‘best guess’, the court held. Also, an employer must request recertification when a leave situation appears to have changed, and Marinette never did.

The case brings up the important point that employers need to adhere not only to the guidelines laid out by the FMLA, but also to the loose parameters laid out by a doctor. If an employer has an issue with the initial certification, it can pay for a second medical opinion. If absences become more frequent, an employer can ask for recertification.

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