By Stephen Bruce, PhD, PHR
Just My E-pinion
Special from BLR’s National Employment Law Update
How to Manage Intermittent Leave (Is that a Joke?)<
Chuckles greeted attorney Jeffrey Wortman when he announced that he’d tell his audience how to manage intermittent leave under the FMLA. He joined in the laughter, but said there are some guidelines that can put responsibility back on employees.
Wortman’s remarks came at BLR’s National Employment Law Update, being held this week in Las Vegas. He is a partner with Seyfarth Shaw, LLP in Los Angeles.
Wortman emphasizes that the employer’s approach to FMLA should be a positive one. Don’t approach it as “This is an incredible pain (although it may be) and I know you’re trying to game the system (although the employee may be).
Go at it from the positive end,” Wortman says. “This is a great law. We value our employees and we want to comply with what the law requires. At the same time, we need our employees to comply with what the law requires of them.” Then you ask for the certification forms, he says.
Certs Are Your Best Tool
Certification forms are your best tool for managing intermittent leave, Wortman says. You have the right to request certification, and doing so helps you to gain some control over the situation most of the time. Of course, Wortman says, not all the time, because “You never know what doctors will certify.”
The cert forms establish some responsibility on the employee’s part, and they also help with morale, he says. Fellow workers want to know that they won’t be overburdened by having to do the work of an employee who is gaming the system.
A few things to remember about intermittent leave:
- Employees must ask. Employees must ask for intermittent leave (as opposed to block of time leave).
- Must be medically necessary. The medical certification must establish that intermittent leave is medically necessary.
- Can’t require proof of treatment. You can’t require that employees prove they had the medical treatment unless your request is for other reasons like sick pay.
- Absence protocol. Establish an absence protocol for managers’ use so they have something to rely on in dealing with employees requesting leave.
- Recert for pattern absences. Request a recertification when you find pattern absences (e.g., every Friday and Monday). Send absence information to the health care provider. Ask, is this the pattern of absences you ould expect? (Don’t jump to conclusions about pattern absences, though. Maybe the person gets chemo on Friday and needs the weekend to recover.)
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Calculating Intermittent Leave
It’s important that employers calculate leave and track intermittent leave carefully, Wortman says. To account for leave, the employer can limit leave increments to the shortest period of time that its payroll system uses, provided it is 1 hour or less.
Special Issues: Intermittent Leave
Face the fact that employees on intermittent leave often do not ever reach 12 weeks in 12 months because they are using such small amounts of leave, Wortman says.
An employee requesting intermittent leave must confer with the employer so as to not disrupt the employer’s operations.
The employer may assign an employee to an alternative position with equivalent pay and benefits so as to better accommodate the intermittent leave
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Final Tips for FMLA
Wortman says that if nothing else, employers should be sure that they are:
- Requiring employees to use paid leave concurrently with FMLA leave. (Otherwise, employees may be able to take 12 weeks of FMLA, then vacation, then sick leave or PTO.)
- Calculating FMLA leave on a rolling 12-month basis. This insures that employees cannot take back-to-back leaves (12 weeks at the end of one year and then 12 weeks at the beginning of the next year) as they can under a calendar year system.