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. 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