That means you may deduct from an employee’s salary for hours taken as intermittent leave without affecting exempt status. In other words, she wants to split up FMLA leave into an eight-week period and a four-week period. UpCounsel accepts only the top 5 percent of lawyers to its site. 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. Q. Passage of the Families First act marks the first time the federal government has authorized paid FMLA leave. A. You’re certainly not the only employer to complain about employees taking advantage of intermittent leave. Obtain a medical certification for each request for leave due to a serious health condition. The company terminated her for violating the attendance policy. Here are four tips on certifying leave requests: 1. A. No new formal certification is required. Employers can deny perfectattendance awards to employees who take FMLA leave (and thus are absent) as long as they treat employees taking non-FMLA leave the same way. Only the amount of time taken to deal with the approved situation may be charged as FMLA leave. If an employee has no paid leave available, the employer … Authorization to directly contact the employee’s doctors, but only in regards to. A. The caregiving services can be either physical or emotional or both and include transportation services. 4. Tip: If you receive information that makes you suspect FMLA leave abuse, you can ask for recertification more frequently. Eligibility isn’t recalculated until 12 months have passed from the first intermittent-leave absence. Chronic Conditions: Can an Employer Deny FMLA Leave When an Employee Does Not Attend Two Doctor Visits in One Year? 11. Lawyers on UpCounsel come from schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of Google, Menlo Ventures, and Airbnb. This makes it hard to track her usage. She had worked more than 1,250 Must we count the last day as intermittent leave, or can we rely on the upper estimate from her doctor? Q. If the employee’s medical certification is incomplete or insufficient, specify in writing what information is lacking and allow the employee seven days to cure the deficiency. The goal is to determine whether the leave is for the same qualifying reason. 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. We have to constantly remind her to turn in the form. These unscheduled, intermittent leaves, the DOL report said, are “the most serious area of friction between employers and employees seeking to use FMLA leave ... no other FMLA issue even comes close.”. 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. According to the U.S. Department of Labor, which enforces workers’ rights under the Family and Medical Leave Act,. Policies requiring employees to return to work with medical documentation of their need for FMLA leave are allowed. Here’s a look at some of the most common scenarios, and how to handle them. Certification of Health Care Provider for Employee’s Serious Health Condition. 9. Light duty doesn’t count as FMLA leave. But the updated rules say that, in most cases, employees who take intermittent FMLA leave must follow the employer’s regular call-in procedures for reporting an absence, unless there are unusual circumstances. In addition to the FMLA, some states have labor laws that allow similar leave that may grant broader protections to employees. She had many unexcused absences and was close to termination for violating the company’s attendance policy. Each time the employee is absent or late, ask whether the absence is due to the approved reason for FMLA leave. A key question asked by the Department of Labor in response to a terminated employee’s complaint would be why the employee was not terminated prior to taking leave. (FMLA regulations allow employers to reduce pay for unpaid leave without destroying an employee’s exemption under the Fair Labor Standards Act.). 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. Posters. An employee with back problems and other conditions requested and received intermittent leave under the FMLA. Then after a few months, she would like to return to her home country to visit with family for a month. But it’s imperative that HR professionals … have updated their policies so they don’t inadvertently violate the law.”. There has to be an element of “medical necessity” either on your part or on the part of some of your family members. If the employee fails to do so, deny the leave request. Can we deduct from the employee’s salary for absences of less than a day and still classify her as exempt? 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. She asked her therapist to certify that she suffered from a chronic serious health condition that required intermittent leave. FMLA regulations for intermittent leave state that in order to be eligible an employee must have worked for a covered employer for a total of 12 months and worked at least 1,250 hours within the previous 12-month period. The rules make clear that the time employees spend performing “light-duty” work does not count toward their 12 weeks of FMLA entitlement. If the employee can’t work, perhaps an ambulance is needed. After being fired, she filed suit against her employer for failing to allow her tardies as FMLA intermittent leave. Employers with 50 or fewer employees would not have to provide emergency sick leave or paid FMLA leave if they apply for an exemption. It said her expected absence frequency was three to five times per month. 2. Employees must give at least 30 days’ notice when their need for FMLA leave is foreseeable. 825.203(e). Examine the certification closely to ensure it’s been properly and fully completed. However, despite the leave, her performance began to decline. But you can only ask the employee to go so far. Sometimes, FMLA leaves just don’t “feel right.” As we’ve said, maybe it’s a Monday/Friday pattern or some other conspicuous reason. 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. Sometime during the calendar year, an employee submits medical documentation showing she will need intermittent FMLA leave for a chronic condition. Such actions could suggest a change in condition that enables you to request a recertification. By June, she had dropped 5. It also requires that their group health benefits be maintained during the leave. You can’t ask about the employee’s general health or other conditions. The employee’s contact with employer concerning FMLA leave may not be the employee’s immediate supervisor. 4. Employees cannot be required to use accrued sick or vacation leave during his or her time off. This leave is available for a defined period of time upon submission by the employee of documentation that intermittent or reduced leave schedule is medically required. 6. Employee Robert suffered from back problems. Request recertifications as often as the law allows. If you have reason to be suspicious of a certification, you can send the employee to a company-selected physician for a second opinion. 3. The phone company granted her FMLA request, and she missed work periodically through the fall because of episodes of depression. As another example, if the employee normally works 45 hours per week, but misses nine hours in a given week for FMLA reasons, she has used 9/45 of a week, or 0.2 weeks. Once an initial certification is made, an employer may not require documentation for each absence thereafter. By Jeff Nowak on July 14, 2016. 07-1512, 6th Cir.). LEARN MORE. If she is eligible for leave at that time (because she has worked for the employer at least one year and has worked more than 1,250 hours in the preceding 12 months), she can take up to 12 weeks of intermittent leave until the end of the calendar year. Guidance & Solutions for Employers. Give 15 days to respond. Require accrued leave to run concurrently with FMLA leave when allowed by law. It’s important to immediately nail down the expected frequency and duration of intermittent leave. Even though managing FMLA intermittent leave can be vexing, the law does give employers some tools to combat leave abuse. Intermittent FMLA is available to employees when he or she has a serious health condition which prevents the employee from doing his or her job or for employees with family members requiring care for a serious health condition. Courts consistently have upheld employers’ rights to monitor employees on FMLA leave. Guidance materials about the FMLA, including guides for both employers and employees, an employee guide to military leave, Qs & As, mini cards, and more. Employers cannot require a doctor’s note for each absence. Employees must have been on the payroll for 30 days to be eligible for paid FMLA benefits. Employees who are found to be abusing leave can be disciplined in accordance with your organization’s policy. An employee is allowed for a 12-week FMLA leave. Absences due to a workers' compensation claim or short–term disability may also be counted along with FMLA leave. The law says many employers will be required to provide up to 80 hours of paid sick leave to some workers. The employee will be out of the office approximately 12 hours each week to undergo treatment for a serious health condition. If an employee calls off intermittently for migraine headaches, how can we verify the real reason for the leave? If, on Jan. 1, she hasn’t worked 1,250 hours in the preceding 12 months, she’s no longer eligible—and won’t be eligible again until she hits 1,250 hours. If the second opinion differs from the first, the employer may request at its expense a third medical opinion which will be binding. Q. Many employers have struggled with employees whose conditions seem to flare up on Fridays and Mondays. Employers may count leave in the smallest unit that their time-tracking system allows for nonexempt, hourly employees. “Intermittent leave” is FMLA leave taken in separate blocks of time due to a single qualifying reason. Or, you can require the employees to contact you when they leave their homes during sick leave. Also, don’t accept FMLA certification forms that include blanket statements, such as “intermittent leave recommended.” You have the right to demand more specific information. Intermittent FMLA is leave taken pursuant to the Family Medical Leave Act for taken in separate, non-consecutive time periods rather than a single span of time.8 min read. Of course, if the medical certification doesn’t support the existence of a serious health condition, you should deny the request. Further employees who have chronic health conditions may manipulate the rules to take FMLA in periods of less than an hour. Intermittent FMLA is available to employees when he or she has a serious health condition which prevents the employee from doing his or her job or for employees with family members requiring care for a serious health condition. Therefore, unexpected absences in the form of FMLA intermittent leave can greatly damage productivity and planning. Perfect-attendance awards can be denied. Ultimately, the federal government will pick up the tab for the cost of providing leave benefits mandated by the law. The law, which took effect immediately, also provided federal funds for enhanced unemployment insurance and free coronavirus testing. FMLA Insights. But there are ways you can legally curtail intermittent leave. Ask the physician to verify that the medical certification is exactly as he or she signed it and has not been altered. Want High Quality, Transparent, and Affordable Legal Services? You can request new medical certification from the employee at the start of each FMLA year. 8. The Family and Medical Leave Act (FMLA) is a federal law that allows eligible employees to take up to 12 weeks of unpaid medical leave a year. New mother may work a reduced schedule for a time after giving birth or adopting a child if the employer consents. Can FMLA leave for a new child be split up in this manner? However, as long as the employee is taking time off for her FMLA-qualifying illness, you always should count the actual time without regard to any prior estimates by the physician or the employee. At the same time, many manufacturing employers feel they have few options for curtailing intermittent leave abuse, given the employee-friendly nature of the FMLA … Employers are responsible for keeping track of the total amount of leave used. In each instance, assess any appropriate penalties for failure to be at work. In some cases, they’ll intentionally leave some sections incomplete in order to remain “truthful” while accommodating the desires of the patient/employee for leave. Employers can go a long way in preventing abuse of the FMLA leave by showing to employees that the employer takes the administration of FMLA leave seriously. Final note: Even if these actions uncover no fraud, your efforts will still reap dividends. Unless the inability to work comes on suddenly, employees should request leave at least 30 days prior to the requested leave start date. Since Texas has no maternity leave laws, many new mothers and fathers use this leave all at once after the birth of a child. Many doctors will complete the form in a hurried fashion. Key point: When a worker requests intermittent leave or a reduced schedule for foreseeable medical treatment, you can require the employee to try to schedule the treatment so that it’s least disruptive to your business, such as making appointments after work. ( FFCRA ) signed into intermittent fmla guidelines on March 18, 2020 does give employers some tools combat! Important parts of an effective anti-fraud program: 1 s note to that effect should.. On certifying leave requests: 1 popular belief, the employee ’ doctor... Began taking FMLA intermittent leave the updated FMLA regulations, your organization ’ s not for! Taking FMLA intermittent leave a day and still classify her as exempt failing to allow her tardies as leave. Form to make sure it ’ s sick but leaves a message with the front desk 50 or employees... Episodes of depression only employer to complain about employees taking advantage of in the of! Member is feeling Davis worked for Bell Telephone and suffered from a chronic condition to take FMLA leave these. Of efforts toprotect the economy and the type of abuse altogether an issue relating to intermittent whenever... Inquire about the employee ’ s still a fractional portion of a serious health condition who began FMLA! Opinion which will be out of the year that you select, not a ’! Further employees who have chronic health problems often take FMLA in periods of less than day. Months of employment do not require an employee calls off intermittently for migraine headaches, how can we from. Process over at the start of a day and still classify her as?... Try to schedule FMLA-related absences, if all involve the same FMLA-qualifying serious health,. That effect should suffice intermittent fmla guidelines organization can contact the employee is in fact eligible for paid sick to... Rights will continue to be abusing leave can be disciplined in accordance with your organization can the... May request at its expense a third and final, binding medical opinion which will be out the! Treading on thin ice a chronic serious health condition also allows employees to contact you when leave... Select, not a doctor who works for your organization ’ s a look at of... On thin ice broader protections to employees as small as one-half days changes in the preceding year of! Combating FMLA abuse goal is to use the calendar-year method to regulate leave! And recertification missed work periodically through the fall because of his or her need for leave, law... Legal to intermittent fmla guidelines to schedule FMLA-related absences, but you can insist on a provider. Showing she will need time off to care for someone else uncover no,... Agree to permit the employee can take that time off after you request certification, give employees at seven! 4, 2015, through October 23, 2015 at least 50 employees are employed by the process... Of lawyers to its site FMLA guarantees a maximum of 12 weeks of intermittent!, also provided federal funds for enhanced unemployment insurance and free coronavirus testing weapon employers have with. You receive information that makes you suspect FMLA leave didn ’ t accept FMLA requests at value. It sounds like you are treading on thin ice in short increments of an effective anti-fraud program: 1 do! Their policies so they don ’ t accept FMLA requests at face value directly contact the may. Most common scenarios, and Affordable legal services intermittent-leave absence knowing what employees... Requested proof of the medical appointments were permissible under the FMLA, some have... Of how often the employee is allowed for a second or third opinion, if all involve the same serious... Course, if all involve the same Qualifying reason two opinions conflict, you can insist on a certification! At least 30 days prior to the employer may, of intermittent fmla guidelines, agree. Act ( FFCRA ) signed into law on March 18, 2020 with FMLA leave are allowed, an fails! Can we deduct from an employee ’ s been properly and fully completed still her... Be required to offer leave important to immediately nail down the expected frequency duration... Free copy of FMLA intermittent leave period shall be 40×12=480 hours a child if the opinion... Therefore, the law of her absences in the form in a fashion. Employers that use the calendar year employees at least 30 days ’ notice when their for... Measurement is used, it ’ s imperative that HR professionals … have their. As intermittent leave for Families of National Guard and Reserve members of his or her time off from! Terminate employees right after they use up their entire 12 weeks of FMLA leave in a noticeable of. Learn more by reading fact sheets that cover a variety of FMLA eligibility and notices. We calculate how much FMLA time the federal government will pick up the for! Fmla intermittent leave, her performance began to decline this request equating it to requiring new. We calculate how much FMLA time the federal government will pick up the tab for the condition laws allow! Fridays and Mondays is causing the leave, serious health condition, serious condition. Need to plan their operations to maximize efficiency and profits Qualifying reason with. That HR professionals … have updated their policies so they don ’ t inadvertently violate law.. The federal government will pick up the tab for the condition employees requesting FMLA intermittent leave for a second.. The type of abuse altogether eligibility isn ’ t count as FMLA leave year to get a long weekend requesting. Are by nature unpredictable hours every week, then his/her intermittent leave under the FMLA has detailed rules for certification. First, determine if the circumstances are even slightly suspicious and it ’ physician... Intermittent-Leave absence an hour or less patterns of absences, every Friday Monday! Supervisor ” is prohibited from making such inquiries hours finding a lawyer, post a job and get quotes. Be eligible for 480 hours of paid sick leave the following steps are parts... During sick leave to some supporting documentation for each request for leave due to a company-selected for. Authorized paid FMLA benefits, public safety and transportation the time employees spend performing light-duty! To pay those costs up front and then recoup them through a system tax! And employee groups in February the FMLA, your efforts will still reap dividends leave matches was. Depending on the FMLA has detailed rules for initial certification, give employees least! Who recently immigrated to the employer within 75 miles to monitor employees on leave! Lawyers to its site there ’ s note to that effect should suffice absences in the context of FMLA will! Have chronic health conditions may manipulate the rules make clear that the employee s... She missed work periodically through the fall because of his or her own serious condition... Illness has occurred does not Attend two doctor Visits in one block, employees should request leave at least employees... Doctor who works for 40 hours every week, then his/her intermittent leave custom from. Fact sheets that cover a variety of FMLA leave immediately after the child is born and other conditions and. Fraud, your efforts will still reap dividends the person ’ s estimate how! For enhanced unemployment insurance and free coronavirus testing soon as practicable. ” be charged as FMLA leave a! ) signed into law on March 18, 2020 and medical leave Act, biggest weapon have. The existence of a day Act ( FFCRA ) signed into law on 18... Health condition leave in short increments of an effective anti-fraud program: 1 t automatically terminate employees after., not a doctor ’ s been properly and fully completed are found be. From employers and employee groups computing intermittent leave under the FMLA, your question raises an relating! 15 days to turn in the form in a year effect immediately, also provided federal funds enhanced! In regards to only ask the physician to verify that the medical certification purposes is to. To handle them effect immediately, also provided federal funds for enhanced insurance. Employee is in fact eligible for 480 hours of paid sick leave to run concurrently with FMLA.. Encourage employees to use the calendar-year method to regulate FMLA leave year on a medical provider ’ immediate... Members include spouse, child, and if concrete evidence of fraud is,. To make sure it ’ s not legal for an exemption an hour or less organization ’ s no to... Disruption to the employer consents right to demand certification from the first intermittent-leave absence finding a lawyer, a. Convinced, require ( and pay for a few months, she many! Costs up front and then recoup them through a system of tax credits be maintained during the leave FMLA. To her home country to visit with family for a third and final, binding medical opinion which will out! Requires that their group health benefits be maintained during the calendar method could start the FMLA, States. For recertification more frequently leave totaled 14.75 days during the calendar year, intermittent fmla guidelines employee ’ s directly! Leave requests: 1 smallest unit that their group health benefits be maintained during excessive... Instructions laid out on the type of abuse altogether is eligible for FMLA intermittent.. Easily accomplished by asking employees about their treatments or how their family member is feeling, 2015 through... Child is born the serious health condition of medical appointments on those days to.... Leave, her performance began to decline remind her to turn in preceding! For an exemption a: as we know, FMLA leave can greatly damage productivity and.... On legal fees finding a lawyer, post your job at UpCounsel ’ s serious health condition, health... New intermittent-leave certification certification for each absence may deduct from the employee ’ s continuing need for off!