Under the Family and Medical Leave Act(FMLA), employees can take up to 12 weeks of unpaid time off with-out fear of losing their job or compensation.

These 12 weeks of unpaid leave can be taken intermittently and this aspect of the law could make it difficult for a human resources department to keep track of an employee’s unpaid leave time and how much they have used.

Fortunately, for employers, an employee looking to take a few hours to days of unpaid leave under the FMLA must first notify their employers of their intentions. If the company falls under the auspices of the FMLA and the employee is eligible – only then can intermittent FMLA leave be granted.

Workers must give a minimum of 30 days’ notice when they know that they will need intermittent FMLA. When the need is unexpected, a worker must inform their employer “as soon as practicable.”

The law gives businesses the authority to require validation through the employee’s medical professional of their need for leave. A company can demand a new healthcare validation from the worker at the start of each FMLA year. Regulations also entitle a company to request a second or third opinion before allowing leave.
When workers have long-term medical conditions that call for FMLA intermittent leave, a company should make an effort to work out leave schedules as far upfront as possible. An employer can try to schedule FMLA-related absences, but can’t refuse them.

A company can try to determine the expected regularity and length of intermittent FMLA leave. An employer may require a medical provider’s approximation of how frequently worker will need time off work. A company can also delay until the healthcare provider gives an approximation to accept intermittent leave.

When certifying intermittent FMLA leave, medical validation must relate solely to the health condition that is resulting in the leave. A company can’t inquire as to the employee’s overall health or other conditions.

After a company requests medical validation, they need to give workers a minimum of 15 calendar days to return the completed paperwork. If the employee’s medical validation is unfinished or insufficient, an employer should stipulate in writing what information is lacking and permit the worker seven days to fix the deficiency.

Under FMLA guidelines, a company can get in touch with the employee’s physician directly to clear up issues related to medical validation. A contact person for the company can be a human resources worker, a leave administrator or a member of management, but not the employee’s direct supervisor.

A company can pay for a second opinion via an independent doctor who the company selects, but not a doctor who works for the company. If the two opinions clash, a company can pay for a third and binding medical opinion.

Combating FMLA Fraud

Unfortunately, some workers will try to take advantage of protections afforded by the FMLA, and intermittent FMLA leave is often one of the most abused protections.
To combat fraud, an employer should get a medical validation for each request for FMLA leave. A sick leave or attendance policy should demand a doctor’s validation for all absences of 3 or more days for the leave to be valid. If company policy has no such requirement and the company plans to require paid leave to run concurrently with FMLA leave, the business will not be able to call for a medical validation. A company should also impose a policy that declines the leave request if a worker fails to submit validation within 15 days, with suitable penalties for failure to be on the job.

Validation paperwork should also be correctly and fully finished. Many doctors will finish the validation form in a hurried fashion, possibly intentionally leaving some sections blank in order to stay honest while supporting the desires of the worker for leave.

After validation is approved, a company can make a small inquiry each time the worker asks for more leave, especially in the case of intermittent leave, in an effort to find out if the leave is for the exact same qualifying reason.

Another way, to combat fraud, is to observe the schedule of intermittent absences closely to find out if a suspicious pattern evolves or if there’s a change in the frequency or timing. Such changes could indicate a change in condition that allows for the request of a recertification.

If a case of intermittent FMLA leave could lead to rampart fraud, a company should consider ensuring all time off is immediately laid out. Companies can also call for specific information and turn down recommendations that include “blanket statements,” which can have the potential for abuse.

Also, it should be pointed out that a doctor does not decide how much time the worker has left under the FMLA. However, if the worker's needs for time off start to considerably exceed the time mentioned on the initial FMLA validation, an employer can request a new validation from the physician.

Intermittent FMLA Case Study

In the case of Brown v. Eastern Maine Medical Center, an employee worker in Maine, said she was living with a chronic medical condition that made it challenging for her to get to work on time. After she compiled many late arrivals and rejected an offer to work on a different shift, she was fired.

The worker then sued her employer, saying her lateness should have been regarded as intermittent leave under the FMLA. Since the condition caused her tardiness, each period of missed time should be seen as a block of FMLA leave, the woman argued.

However, the plaintiff was unable to show that she has ever sought medical treatment or that her condition had worsened, causing her to be late. The court did not see the situation her way and the judge noted that giving the worker FMLA protection would have given her permission to violate company policy.

Tracking Intermittent FMLA Leave

Qcera provides a number of web-based and software solutions for companies looking to track the leave time of employees taking off under the FMLA. All of Qcera’s products are backed up with a complete service from fully-trained professionals.

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