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5 Tips for Managing Intermittent FMLA Leave

FMLA
by Chris Ceplenski

Managing intermittent FMLA leave while minimizing fraud and abuse can be a challenge. But there are ways to try to make the process as smooth as possible. Follow these 5 tips:

  1. Confirm eligibility
  2. Restrict intermittent leave to only what the law allows and ensure it’s taken properly
  3. Use medical certifications
  4. Train supervisors to get it right
  5. Use the tools you have to manage it well: consistent application of policies, tracking all usage, look for patterns to reduce improper usage, and investigate suspected abuse

Managing Intermittent FMLA Leave Tip 1: Confirm Eligibility

When an employee requests FMLA leave, the very first step is to confirm whether or not they are eligible to take it. The employee must have been employed by your company for at least 12 months, and must have at least 1,250 hours worked in the preceding 12 months. Additionally, the company must have 50 employees within 75 miles of the employee’s location for the FMLA to apply.

Be sure to give the employee notice if they’re not eligible – even if they have not yet asked for FMLA leave but need to be absent. If you don’t inform them they’re not eligible, you may not be able to discharge them for absences that would have been covered under the FMLA.

For example, if the employee is not aware that the FMLA does not apply due to the employer not having enough employees within 75 miles, they may be taking absences they thought would be legally protected. It’s best if all employees understand what it takes to be eligible before they even need it.

Managing Intermittent FMLA Leave Tip 2: Restrict It (Within the Law)

The next step an employer can take is to give detailed definitions of what is (and what is not) allowed within the law for intermittent FMLA leave. By restricting the leave to only what the law allows, this still ensures you’re in compliance while minimizing the potential for abuse.

For example, employers can:

  • Define the smallest increment allowed for leave. When leave is taken, count all of it and track it.
  • Choose not to allow intermittent leave for the birth, adoption or placement of a child. (The employer can require this leave to be taken in time blocks rather than intermittently).
  • Require advance scheduling of planned intermittent leave. The law requires employees to try to schedule planned absences in a way that’s least obtrusive.
  • Consider a temporary transfer for employees who require planned intermittent leave. This is allowed if there is a position that would better accommodate the leave.

Managing Intermittent FMLA Leave Tip 3: Use Medical Certifications

Another tip for employers managing intermittent FMLA leave is to require and review medical certifications from employees who request leave. Ensure that the medical certification received supports the leave that is being requested. If the form is incomplete, ambiguous, or does not adequately explain the need for the leave, the employer can require the completion or further explanation.

Employers can also seek recertification every 6 months. Recertification can be sought sooner if the employer reasonably questions the actual use of FMLA leave, such as when the employee’s intermittent absences do not align with the anticipated frequency or duration on the original certification.

A new certification can be sought annually as well. At the annual certification, don’t forget to recertify that the employee meets the 1,250-hour eligibility requirement.

Managing Intermittent FMLA Leave Tip 4: Train Supervisors to Get it Right

Training supervisors to get it right is often the first line of defense against FMLA abuse. It can also mean that fewer FMLA leaves are granted to individuals who actually don’t qualify.

“It’s very critical both in monitoring FMLA intermittent leave and tracking down potential for abuse: train your supervisors. Make sure your supervisors understand how intermittent FMLA leave works, what sort of certification requirements and notice requirements are out there, and what to look for.” Charlie Plumb advised in a recent BLR webinar.

In fact, some companies have found through investigation that department supervisors were granting FMLA leave when it did not apply – costing the company money. Be sure your supervisors know the rules.

Managing Intermittent FMLA Leave Tip 5: Use All Tools at Your Disposal

Last but certainly not least, be sure to use the tools you have at your disposal to manage FMLA leave well: consistently apply your policies, track all FMLA usage, look for patterns to reduce improper usage, and investigate suspected abuse.

Consistently apply policies. Have and uniformly apply and enforce call-in policies. “Make anybody who is going to miss work gives you adequate notice as soon as they know they’re going to miss work.” Plumb advised. Apply the policy consistently not only to FMLA leave, but to others missing work as well.

Track your intermittent FMLA leave use. “I always tell employers: look at where your intermittent leave is coming. Is it in a particular department? Is it in a particular operation of your company? Does it involve a particular supervisor? Because sometimes there are patterns that are very revealing and it may be a supervision issue. It may be a documentation issue.”

Look for patterns. Periodically looking and tracking where intermittent leave is being used may be helpful to see if there is a problem. This goes for both individual use and company-wide patterns.

Investigate suspected FMLA leave abuse. Don’t ignore it. Employers are entitled to investigate if there is an honest suspicion. “When employees who are not entitled to FMLA are using it in an exploitive or abusive fashion, it’s harming coworkers and it’s harming the workplace as well.” Plumb noted.

For more information on effective management of intermittent FMLA leave, order the webinar recording of “FMLA Intermittent and Reduced Schedule Leave: Master Top Challenges When Managing Frequent or Unexpected Absences.” To register for a future webinar, visit http://store.blr.com/events/webinars.

Attorney Charlie Plumb represents management in all phases of employment law and labor relations and also serves as leader of McAfee & Taft’s Labor & Employment Group.

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