Managing Intermittent FMLA Leave

by Cynthia Barnes, Esq.

Given the changes to the Family Medical Leave Act (FMLA) leave rules, the management of intermittent leave is somewhat more restricted than it was previously. Most of the time, intermittent leave is for medical conditions that may require long term treatment or for chronic conditions. Setting aside the issue of evaluating any Americans with Disabilities Act (ADA) claims, special districts must first seek to evaluate and manage the extent and frequency of the FMLA until it is used up, or until the employee returns to work.

Some key steps to take include the following:

1. No FMLA absence can truly be “unanticipated” these days, so formulate a plan for coverage. Develop an on-call, part-time or casual work group to help fill in for the absences.

2. Enforce your “no moonlighting” policy consistently and always. Especially review moonlighting practices reported in light of how intermittent leave would impact the primary special district job of your employees. If they are sick, consider if they are well enough to carry on a busy volunteer schedule for the special district, for example.

3. When reviewing FMLA requests, take the following steps to ensure the best result:

  • Try to protect employee medical information from the direct supervisor. Ideally, the FMLA review should be done by an HR or health professional who is sworn to protect the privacy of any medical information.
  • Review each medical certification or other documentation provided for accuracy, completeness, and rationality. If it does not make sense, provides incomplete information for you to make a schedule, or you don’t understand it, have a nurse case manager or other medical consultant review it. It is worth the extra fee. If it appears to be written by more than one person or has been altered, fax a copy to the doctor for verification.
  • Use the employer’s right to send the employee for a second opinion when necessary. Make sure you consult or at least make a list of unanswered questions for the employee to answer before you designate the specialist or other medical person you want the employee to see. Evaluate the cost to the department of the employee being gone for several days, a month or indefinitely.
  • If possible, have a conversation with the employee before using the second exam. While you can’t force an employee to sign a medical release of information, if you let them know that their request may be denied for lack of the right information, they may be willing to clarify for you what triggers their unexpected or intermittent need for medical care.
  • For requests for intermittent leave that do not require a trip to the doctor each time, it might be prudent to get a second opinion on whether, when, or how much the employee could be expected to be absent from work. These situations are the most likely to allow for leave abuse, so be careful to get what, when, where and how often up front.

4. For FMLA leave for chronic conditions, the employee must see a doctor at least twice per year. Require employees to notify you of these follow-up visits if they use intermittent leave so you can coordinate a well-timed request for an allowable medical update from under the FMLA.

5. Make sure you notify each employee who requests and receives FMLA authorization (a) exactly how many hours they are authorized for (only enough to meet the “medical necessity” standard or to meet one of the other legitimate FMLA reasons as indicated on the forms); (b) the date they are to return from FMLA; and (c) whether or not you require a Return to Duty Fitness Certification and whether or not that includes a “functional capacity exam” (commonly used in workers’ compensation and other job related medical screenings).

6. If an employee is scheduled to work, and has to use FMLA, it should be attributed to whatever paid leave accruals exist. If all have a zero balance, the employee should be notified immediately that they are on unpaid time and when it runs out.

7. Make sure your paid leave rules require the use or allotment of vacation, sick, and compensation time for pay during the FMLA leave periods. Specify the order in which they are to be used, and follow that policy every time regardless of whom the employee is or what the circumstances are.

8. On intermittent leave requests, get specific instructions on when those necessary treatments are, how and when the employee will notify you of them, or how often unexpected relapses, etc., might occur based on the patient’s history. If circumstances change, it is the employee’s duty to apply for and get a re-certification based on those changed needs.

9. If an employee on intermittent leave seems to be having unexplained or unjustified pattern absences, you can send the certifying doctor an attendance chart with the following questions: Should they be missing these days due to their medical condition? Is it consistent with their treatment plan or schedule? Is it consistent with their consultations with you? While doctors might err on the side of filling out forms, they rarely are willing to be a party to deceit or fraud. The solution is to pose questions carefully.

10. Don’t force an employee to use overtime accumulations for FMLA (doing so violates Department of Labor rulings), but strongly encourage them to do so as these hours are payable if they quit.

11. Don’t allow extra paid leave or overtime to be taken to supplement FMLA if it’s being used along with workers’ compensation payments. This rewards absences. However, you may allow its use for hours that are not covered by your workers’ compensation rules.

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