Working with Intermittent FMLA Leave and Avoiding Abuse

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Under the Family Medical Leave Act (FMLA), workers can use up to 12 weeks of leave over a 12-month span for their individual or an immediate family member’s significant health condition and up to 26 weeks to provide care to a military member. The leave can be taken in one block, over many periods of time or sporadically. To take leave under intermittent FMLA rules, the worker need only offer a single validation that there is a medical need for such leave every 12 months.

While extended FMLA leaves are relatively easy to handle administratively, an employee’s ability take small increments of FMLA leave occasionally generates administrative complications for employers and raises the potential for worker abuse of intermittent leave under the act. The FMLA does provide a few tools that can be used to decrease intermittent FMLA abuse.

A company should make sure absences under the intermittent FMLA rule is adequate, valid, and supports the need of intermittent leave. When a validation form has items missing, is obscure or ambiguous, a company may ask the worker to resubmit adequate information. The employer request for resubmission must be on paper and must specify the reason the validation was deemed incomplete or insufficient. The worker then must supply the necessary information within a week. If the worker fails to provide the correct paperwork, leave could be delayed or denied.

A company may also contact the health care provider to curb intermittent FMLA abuse. An employer should make certain that the doctor or provider actually prepared the validation and to clarify details, but a company must use a human resource worker, health care provider, leave administrator or management official -- not the employee’s direct supervisor.

Throughout this process, an employer should not request more than what is essential under intermittent FMLA rules. Organizations that have reason to question the validity of a primary validation may for pay a second opinion. The doctor providing the second opinion may be of the employer’s choosing, but cannot be one the company employs regularly. If the first and second opinions contrast, a company may pay for the worker to see a third health care provider to provide a binding and final opinion.

Taking care of leave is not over after a worker sends in a validation that calls for sporadic health-related absences under the intermittent FMLA rules. Employers must be confident that all absences associated with the described condition are counted toward the employee’s FMLA entitlement, yet still ensuring that they are not counted under a no-fault attendance policy.

In larger companies, supervisors should pass along information on absences in an attempt to curb intermittent FMLA abuse. A company should train supervisors to identify absences that may be covered by the FMLA.

Determining FMLA absences is not simple, in part because the Department of Labor and the courts have found that the worker does not have to mention to the FMLA in a request. If there is a current, approved validation – it is enough for the worker to inform the company that they had a flare up of the health condition covered by the validation. For initial health-related absences, supervisors should be trained to inform human resources whenever a worker is out for over three days with an illness, especially if the worker saw a medical doctor during that time.

Working Around and With Intermittent FMLA leave

Organizations may require that workers deplete paid leave for their absences under intermittent FMLA rules. This can be included in leave policies and enforced to avoid the situation where a worker may take paid leave after their FMLA leave expires, extending a leave of absence past the FMLA entitlement.

The 2008 FMLA laws clarified that a company may require workers to follow company paid-time-off policies to get paid for FMLA leave time. For instance, a company may necessitate the worker to call a particular person or a selected telephone number to inform the business of an FMLA absence.

Workers may take intermittent leave for treatment, therapy, and visits to the doctor for significant health conditions. FMLA rules explicitly require that workers schedule those absences for planned medical care in a way that least interrupts a company's operations. When a company obtains a request for this kind of intermittent leave, it should talk to the worker approximately the regularity of the treatment, the office hours of the physician and ways that the worker may be able to modify the schedule to cut down on interruptions.

If the need for intermittent leave is expected ahead of time, a company may transfer the worker to another available position during the leave time. The position must be one for which the worker is qualified and which better serves the leave period. The different position must have equal pay and benefits, but doesn't have to entail equivalent duties. If the worker asks to use leave to be able to work a decreased work schedule, a company could also transfer the worker to a part-time role at the same pay rate as their initial position, provided that benefits stay the same.

Catching Intermittent FMLA Abuse

A business should always monitor the use of leave to avoid the potential for intermittent FMLA abuse. A company may also want to focus on patterns of intermittent leave utilization. A company may seek recertification more often than every 30 days if the conditions described by the existing validation have changed, or the company receives information that casts uncertainty on the employee’s basis for the absence or the validity of the validation going forward.

Employers should not resort to stalking workers on FMLA leave. However, a growing amount of workers are outing themselves as cheaters by posting pictures or videos of their activities to social media while they are meant to be disabled with a chronic condition. In these instances, employers should check out the whole story to not only validate what they see on social media, but also to get the worker's side of the story.

Keeping track of intermittent FMLA rules and catching intermittent FMLA abuse can be challenging and time-consuming. Qcera offers a number of software and web-based solutions for companies looking to accomplish both goals. Each of these products is backed by full service provided by company experts.

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