Use of the medical certification process is the biggest weapon employers have in combating FMLA abuse. Employers cannot require a doctor’s note for each absence. Always follow up on reports from fellow employees or other sources that the employee does not, in fact, need leave. No new formal certification is required. New FMLA regulations went into effect in 2009 and again in 2013 that addressed employers and how they were to comply with FMLA's legal requirements. A. You’re certainly not the only employer to complain about employees taking advantage of intermittent leave. This makes it hard to track her usage. Ask the physician to verify that the medical certification is exactly as he or she signed it and has not been altered. Q. That said, if the employee’s requests for time off begin to significantly exceed the time stated on her original FMLA certification, you should ask for a new certification from her physician. 8. If the leave were required because either the mother or the child had a serious health condition, the law would allow taking the leave in two or more parts. 11. However, despite the leave, her performance began to decline. Many employers have struggled with employees whose conditions seem to flare up on Fridays and Mondays. Fortunately, a recent DOL opinion letter says that a pattern of Friday/Monday absences counts as information that casts doubt on an employee’s stated need for FMLA leave. The first big action by Congress was the Families First Coronavirus Response Act (FFCRA) signed into law on March 18, 2020. Authority to require certification from a medical provider of the need to be absent from work which said certification may be required to be renewed at the beginning of each new annual FMLA period. However, employers should never encourage employees to exhaust other leave prior to electing FMLA leave. Tip: If you receive information that makes you suspect FMLA leave abuse, you can ask for recertification more frequently. Obtain medical certifications and adopt and enforce a policy of refusing leave without certification and punishing absences from work without proper certification. Must we count the last day as intermittent leave, or can we rely on the upper estimate from her doctor? Access interactive online tools and presentations about the FMLA. Light duty doesn’t count as FMLA leave. 3. The employee’s contact with employer concerning FMLA leave may not be the employee’s immediate supervisor. Want High Quality, Transparent, and Affordable Legal Services? Ultimately, the federal government will pick up the tab for the cost of providing leave benefits mandated by the law. Final note: Employees who are approved for FMLA intermittent leave can take that time off as needed. Require a second opinion if the circumstances are even slightly suspicious and it’s an original certification. In order to facilitate the needs of the employer as a result of employees taking intermittent leave or a reduced leave schedule, the employee can be moved from his current position to another so long as: These transfers are limited in time to only as the FMLA leave is needed and other laws may apply to this transfer. If the need for leave is unforeseeable, employees must notify you “as soon as practicable.” Fortunately, you can take the following steps to help prevent intermittent FMLA leave abuse: Q. If you’re still not convinced, require (and pay for) a second opinion. One of the biggest employer complaints about the Family and Medical Leave Act (FMLA) has long concerned the productivity problems caused by employees’ use—and abuse—of intermittent leave, according to a U.S. Department of Labor (DOL) report. The regulation update came after two years during which the DOL received more than 20,000 suggestions on changes from employers and employee groups. 10. One of the driving forces for this law was the growth of the number of married women in the workforce. Q. “The new rules drastically changed the way much of the FMLA works,” said Matthew Effland, an employment law attorney with Ogletree Deakins in Indianapolis. Fact Sheets. You can’t refuse FMLA leave when workers are entitled to it or force them to return early from an injury for light-duty work. How do you calculate the amount of leave taken? The following steps are important parts of an effective anti-fraud program: 1. Guidance & Solutions for Employers. If an employee schedules treatment without first discussing this with the employer, the employer may legally require the employee to consult with the medical provider about other treatment schedules. But that doesn’t mean you aren’t entitled to some supporting documentation for each absence. It’s not legal for an employer to reduce the total amount of leave just because it’s taken intermittently. Military caregiver leave. It says employees affected by the coronavirus pandemic will be eligible for paid sick leave and many will be able to take paid FMLA leave. You can request new medical certification from the employee at the start of each FMLA year. The Family and Medical Leave Act (FMLA) provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. Intermittent FMLA may be used for any of the situations in which an employee is eligible for FMLA benefits. When an employee realizes that taking leave today will affect future vacation time, he or she is more likely to take FMLA only when the need is legitimate. Learn more by reading fact sheets that cover a variety of FMLA topics. But it’s imperative that HR professionals … have updated their policies so they don’t inadvertently violate the law.”. If an employee calls off intermittently for migraine headaches, how can we verify the real reason for the leave? If the employee can’t work, perhaps an ambulance is needed. For computing intermittent leave, the period is mostly divided into hours. Employees who are telecommuting do not qualify for paid sick leave. An employer may voluntarily allow intermittent leave whenever the employer agrees but is not always required to offer leave. Generally, the law applies to employers with fewer than 500 employees. It’s important that your sick leave or attendance policy requires a doctor’s certification for all absences of three or more days for the leave to be excused. However, employers have been able to successfully defend their post leave termination decisions. Families of National Guard and Reserve personnel on active duty are allowed to take up to 12 weeks of job-protected FMLA leave per year to manage their affairs. Can we terminate her for refusing to follow the instructions laid out on the FMLA approval form? Since Texas has no maternity leave laws, many new mothers and fathers use this leave all at once after the birth of a child. What Guidelines Apply to Taking Intermittent FMLA Leave? Applicable regulation can be found at 29 C.F.R. After initial approval, especially with intermittent leave, conduct a plenary review of each subsequent request for leave to determine if leave is for the same condition or some new issue. Upon monitoring his absences, Oak Harbor notice that almost 9 out of 10 absences during a six year timeframe fell next to a weekend of holiday. Absences due to a workers' compensation claim or short–term disability may also be counted along with FMLA leave. If an employee is otherwise exempt under the Fair Labor Standards Act, providing unpaid FMLA leave will not cause her to lose her exempt status. Under this revision, employer approval of intermittent leave is not required when an employee needs to take leave due to their child’s school operating on alternate days of in-person and distance learning. His intermittent FMLA leave schedule was approved for September 4, 2015, through October 23, 2015. It’s also important to make sure that the reason the parent is requesting intermittent leave is only because of the birth of her child. The FMLA gives employers rights to information regarding the employee’s health condition, including: How can an employer effectively prevent fraud and abuse of FMLA protections? The FMLA leave of the employee (a spouse, son, daughter or parent of the military member) must be related to certain qualifying circumstances related to the military service. Don’t accept FMLA requests at face value. But not all intermittent leave requests are equal. Whether an employee takes FMLA leave intermittently or all at one time, the total amount of FMLA leave remains the same which is 12 weeks per 12-month timespan normally or for military caregivers, 26 weeks for one 12-month period. If the two opinions conflict, you can pay for a third and final, binding medical opinion. It reasoned that employers that use the calendar method could start the FMLA process over at the beginning of the year. An employee with back problems and other conditions requested and received intermittent leave under the FMLA. It sounds like you are treading on thin ice. Many employees seek to abuse the protections afforded by the FMLA and employers will have little recourse without keeping adequate records. In each instance, assess any appropriate penalties for failure to be at work. Policies requiring employees to return to work with medical documentation of their need for FMLA leave are allowed. 3. Can we deduct from the employee’s salary for absences of less than a day and still classify her as exempt? Request recertifications as often as the law allows. If strange patterns develop (such as always being off on Mondays or Fridays), it could suggest a change that allows you to request a recertification. Like if the employee is suffering from migraine then he can take leave for a few hours during the excessive pain period. Courts consistently have upheld employers’ rights to monitor employees on FMLA leave. Employers should remain involved in knowing what their employees are doing. Q. The caregiving services can be either physical or emotional or both and include transportation services. An employee who desires to claim intermittent FMLA leave should make a reasonable attempt to accommodate the scheduling needs of employer so as to least hinder company operations. If not, request a new certification. A “reduced leave schedule” is a leave schedule that reduces an employee’s usual number of working hours per workweek or workday. To help alleviate this problem, use a calendar-year method to regulate FMLA leave. However, 4 days into his intermittent leave, he was terminated for being “absent without notice.” The employee filed suit, alleging his employer interfered with his previously approved FMLA leave and discharged him in retaliation for exercising his right to leave. A. hours in the 12 months before the leave started. Tracking is a key component of managing intermittent leave. Because their conditions can flare up at any time, their absences are by nature unpredictable. Employers may retroactively adjust leave and reclassify leave as FMLA leave in order to make sure an employee’s allotted FMLA leave is extinguished. Such intermittent or reduced-schedule leave is FMLA leave that an employee takes in blocks of time that are less than the full amount of the employee’s total entitlement. You can’t ask about the employee’s general health or other conditions. By September, she reached the 1,250-hour threshold (she had already worked for the company for more than one year) and became eligible for FMLA leave. The 12 months of employment do not have to be … Employees must have been on the payroll for 30 days to be eligible for paid FMLA benefits. As you may imagine, the court ruled in favor of the employer stating that intermittent leave applies only to absences from work for medical treatment or due to incapacity from an acute attack of symptoms. Can FMLA leave for a new child be split up in this manner? You also can wait until the provider gives you that estimate to approve intermittent leave. However, you can minimize it by making sure that you promptly designate all time off—including intermittent leave—to help you exhaust the 12-week FMLA clock as quickly as possible. Similar to workers’ comp cases, employers that believe employees are abusing their FMLA leave can call and check to make sure sick employees are resting at home. She has informed us that she expects to take eight weeks of FMLA leave immediately after the child is born. If the employee is taking time off in excess of the estimated time, you should confirm with the employee why she is actually taking time off (i.e., her illness versus another reason). UpCounsel accepts only the top 5 percent of lawyers to its site. Further employees who have chronic health conditions may manipulate the rules to take FMLA in periods of less than an hour. January 2009 and February 2013 saw the institution of new FMLA regulations which made important changes in how employers must administer the legalities of the FMLA. Give 15 days to respond. Intermittent FMLA is leave taken pursuant to the Family Medical Leave Act (FMLA) for a single injury, taken in separate, non-consecutive time periods rather than a single span of time. 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