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Legal guidance for employers dealing with intermittent FMLA requests
SHERRY KARABIN
Legal News Reporter
Published: September 29, 2016
As the number of Family and Medical Leave Act (FMLA) lawsuits continues to rise, many attorneys are advising companies to review their policies and tracking procedures especially when dealing with intermittent leave requests.
According to the Administrative Office of the U.S. Courts, there were 1,095 lawsuits filed in U.S. districts courts during the 12-month period ending June 30, 2014. This is a dramatic increase from the same period in 2013 when 749 suits were commenced. The numbers are increasing. The agency’s records show 1,198 lawsuits were filed for the 12-month period ending June 30, 2016, up from 1,116 in 2015.
Enacted in 1993, the FMLA requires private employers with 50 or more employees and all public agencies, including colleges and schools, to allow eligible workers to take up to 12 workweeks of unpaid job-protected leave in a 12-month period to deal with their own serious health condition or that of an immediate family member or for the birth, adoption or foster placement of a child.
In addition if an eligible employee’s spouse, son, daughter or parent is on or called to covered active duty with the National Guard, Reserves or regular armed forces or if that relative needs care for a related serious injury or illness, the FMLA also provides up to 26 workweeks of unpaid job-protected leave in a 12-month period.
To be eligible for FMLA leave, a worker must have spent 1,250 hours on the job during the 12-month period immediately prior to the leave request and the person or his/her immediate family member must have an illness, injury, impairment or physical or mental condition that qualifies as a serious health condition under the law.
Sarah Moore, a partner in the Cleveland office of the management-side labor and employment law firm Fisher Phillips, said while longer consecutive leave periods are relatively easy for human resources personnel to keep track of, employees with conditions that require sporadic leave can present challenges for companies trying not to run afoul of the rules.
“Intermittent leave can make it easier for FMLA to be abused since the time may be taken at small intervals and be more difficult to track,” said Moore.
“The best way to avoid problems or misunderstandings between the employee and the employer is for the employer to have a meaningful dialogue at the inception of the request in order to gain a real understanding of how the condition might impact the employee’s ability to work and trigger the need for intermittent leave.”
Moore said employers must be sure that workers requesting leave for themselves or a family member provide a certification from a healthcare provider that a serious health condition exists and the need for continuous or intermittent FMLA leave. In certain circumstances, a company can also request a second or third medical opinion along with periodic recertification that the illness is continuing.
“An employee should not be using FMLA to schedule a doctor’s appointment during the workday if that appointment could otherwise be scheduled after the workday,” said Moore.
“If human resources personnel have a conversation right from the beginning, this general topic of scheduling doctor appointments should be discussed.”
Moore said in the medical certification, the employer will be made aware of the potential need for unanticipated intermittent leave and the context in which it may present, i.e., flare-ups.
“For example, if the person has a serious health condition with intermittent likelihood of migraines, the employer will be aware that time off may be requested with little notice,” said Moore.
“It is also important to evaluate potential leave abuse. In the case of this person using intermittent leave for a migraine, there is likely grounds for flagging the matter for investigation of abuse of leave if the worker is seen at a ball game on social media on the day of absence.”
Karen Adinolfi, a partner at Roetzel & Andress said careful documentation and recordkeeping are extremely important when dealing with intermittent leave.
“An employee may take one or two days at a time or even periods shorter than a day, if the employer allows such smaller increments to those taking other types of leave,” said Adinolfi, who represents businesses and educational institutions in a wide range of labor and employment matters. “Employers must keep track of all the hours taken so that they can make sure an employee does not take more time than he/she is entitled to.”
She said a business could require a worker taking intermittent FMLA leave to follow the same call-off procedures as employees not on FMLA leave.
“Employers may also temporarily transfer an employee to a similar position with equivalent pay and benefits if the other position would better accommodate the employer’s needs,” said Adinolfi.
“For instance, if a worker or a family member needs to receive dialysis on certain days and times and a similar position with equivalent pay and benefits would allow the person to do so with less disruption to the employer’s operations, the employer can opt to reassign the person with the caveat that once the FMLA leave is over, the employee can return to the original job.”
Adinolfi said the key to avoiding lawsuits is for the business to spell out all employee obligations and requirements in paperwork or a handbook and to follow those rules as well as the FMLA’s required procedures.
“Employees cannot be treated more harshly than another worker who is not on FMLA leave and there are some instances, such as with discipline for absences or tardiness necessitated by the intermittent leave, where the FMLA might require an employee to be treated differently than an employee not taking FMLA leave,” said Adinolfi.
Moore said employers should examine whether they have or can establish policies that require workers to first use all their accrued vacation pay before taking unpaid leave.
“Limiting an employee in effectively ‘pyramiding’ leave time should be achieved to the greatest extent possible,” said Moore. “Care should be taken in unionized settings, however, as the labor contract may allow workers to take various leaves in such succession.”
John F. Myers, a sole practitioner in Akron who represents employees, said he receives about a call a month from workers asking for FMLA advice.
“I let them know what conditions qualify and what kind of proof an employer can require from them,” said Myers.
“I think intermittent leave can benefit both employees and employers,” he said. “In cases where an employee is suffering from chronic migraines or arthritis, it is better that the person takes time off as opposed to remaining on the job and being less productive.
“I would say the number one way for workers to protect themselves is to make sure the condition is well documented,” said Myers. “This protects the worker and also helps the employer by removing any doubts about abuse.”