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A retail store associate develops migraines that persist for hours at a time. The condition is such that, even with over-the-counter medication, he is unable to focus on tasks such as stocking shelves and helping customers. He requests unpaid leave under the Family and Medical Leave Act for flare-ups of his condition, but the timing of the leave is specific to whenever his migraines occur rather than a set schedule.
Employers have a name for this kind of FMLA situation: intermittent leave, that which occurs at irregular intervals. According to Jeff Nowak, shareholder at Littler Mendelson and author of the FMLA Insights blog, intermittent leave is most commonly associated with chronic health conditions that are episodic in nature.
Intermittent leave is also perhaps the most difficult category of FMLA leave to administer, Nowak said, in part because it can be difficult to recognize the need for leave. Communication is essential to ensure compliance, he added.
“It’s critical that employees inform employers with some level of specificity that they need leave for this type of chronic condition,” Nowak said.
‘Traps anywhere and everywhere’
In our hypothetical scenario, the associate calls his store manager and reports that he will be absent from work because of his migraines. It’s at this very point that employers need to consider whether the FMLA applies, according to Nowak.
“There are traps anywhere and everywhere along the way, and an employer’s failure to recognize the need for intermittent leave is a common trap,” he said.
The process begins by training managers to identify absences as potential FMLA absences and having call-in procedures that specify the time period by which an absence must be reported, the person to whom the absence should be reported and what the call itself should cover.
“If employers don’t have call-in procedures set up in a handbook or personnel policy that’s distributed to employees, it’s critical that those policies be put in place today,” Nowak said.
Whether an employee’s request triggers the FMLA can be inexact, he continued, but if there is any doubt on the part of the employer then caution should be exercised. Managers may follow up with a list of questions, such as:
- What is the reason for the absence?
- Which of the employee’s job functions can they perform, and which can they not perform?
- Will the employee see a healthcare provider?
- Has the employee taken leave previously for this condition?
- If the employee is calling in late or is chronically late with call-ins: When did the employee first learn of their need to be absent?
- When does the employee expect to return to work?
Each of these points can be critical for determining whether intermittent leave is at issue, Nowak said.
Obtaining medical certifications (and using them to your advantage)
When an FMLA leave request is made, employers may require employees to provide medical certification in order to verify the employee’s need to take time off. Per the U.S. Department of Labor’s guidance on the subject, employees are responsible for providing complete and sufficient documentation within 15 calendar days after the employer’s request.
The guidance also notes that employers may not request recertification more often than every 30 days in connection with an absence unless the condition will last for more than 30 days. In that case, the employer must wait to request a recertification until the specified period has passed, but it may request recertification every six months in connection with an absence. Employers also may request a new medical certification each leave year for medical conditions that last longer than one year, and such new medical certifications are subject to second and third opinions.
Employers may request recertification in less than 30 days if the employee requests an extension of leave; the circumstances described in the previous certification have changed significantly; or if the employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification, per DOL.
Failure to certify in a timely fashion is a mistake that “all too many employers” make, Nowak said — and different parties are responsible for filling out certain sections of the medical certification form. The first section asks either the employer or employee to provide information such as the deadline for return of certification and a statement of the employee's essential job functions. The second section asks a medical provider to provide information about the health condition and the amount of leave required, among other details.
“Where the physician has not answered all questions, or whether the doctor has provided vague information, employers may consider asking questions that probe further into the information provided,” Nowak said.
Effective use of medical certifications allows employers to fight FMLA fraud and abuse, he added, and it’s important to follow up on patterns of absences to ensure intermittent leave is being used properly.
For instance, if the employee frequently takes off around holidays or on Mondays and Fridays, Nowak said HR should ensure that such patterns are consistent with the employee’s medical condition and need for leave.
“That tactic goes a long way toward ensuring that FMLA is properly used and administered,” he said.
Don’t forget to discuss expectations
Upon approval of leave, Nowak said employers should remember to have an HR team member or a manager talk through certain expectations around leave with the employee. These can include ensuring that the employee understands call-in requirements and what information they must provide at call-ins as well as expectations for proper use of FMLA leave.
“Summarize those expectations in a document that’s provided to the employee at that meeting,” he continued. “It may be helpful to go through the FMLA policy in that meeting so that the employee has a complete understanding of their rights and responsibilities in reporting FMLA leave in the future.”
It also may be a best practice to discuss expectations with respect to scheduling future medical treatments, Nowak said. He noted that FMLA regulations require employees to make reasonable efforts to schedule such treatments so as not to unduly disrupt the employer’s operation.
