How California Employers Should Deal with Intermittent Leave Abuse

A consistent employer complaint in administering the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) is the tendency of certain employees to abuse intermittent leave taken to care for their own or a family member’s serious health condition—and the difficulty of managing that abuse.

Although the FMLA and CFRA also contain special rules relating to the use of intermittent leave for other purposes, today we’ll focus on rules relating to intermittent leave to care for an employee’s own or a family member’s serious health condition only.

While there is no “silver bullet” that can completely eliminate this challenge, several practices can help prevent such abuse and provide you with tools to respond to it.

Here are some specific steps you can take to manage intermittent leave to care for a serious health condition, courtesy of Marc Koonin, an attorney with the San Francisco office of Sedgwick, LLP.

1. Require and facilitate proper certification. Although the CFRA prohibits you from requiring disclosure of a diagnosis of the underlying medical condition, both the CFRA and the FMLA allow you to require medical certification for leave, including certification that the intermittent leave is “medically necessary.” Accordingly, it’s important to do the following: 

• Provide the certifying physician with detailed information about the essential functions of the job up front. This will minimize the usual tendency of “friendly” physicians to rubber-stamp a leave request.
• Obtain as much detail as reasonably possible about the scope of the intermittent leave, such as whether the leave can be pre-scheduled, how long it will be, and whether there is leeway in the time of day it must be scheduled.
• You should require employees to provide complete and proper medical certification. Moreover, you should be prepared to treat the absences of employees with improper certification (who have been given the opportunity to correct any deficiencies) as unexcused and subject to discipline under your regular policies.

How To Comply with California and Federal Leave Laws — newly updated for 2012!

2. Require second and third opinions as necessary. While certification isn’t allowed for leave to care for family members, you should be willing to challenge questionable medical certifications by requiring second and/or third opinions regarding an employee’s need to take intermittent leave for her own serious health condition.

3. Ask the employee to work with you regarding the scheduling of planned intermittent leaves. The current FMLA regulations require employees who need planned intermittent leave for medical treatment to make a “reasonable effort” to schedule treatments in a manner that doesn’t unduly disrupt your operations.

Although it may be difficult to counter a report that planned absences can’t be moved, you shouldn’t be reluctant to ask an employee whether the absences can be scheduled in a manner that better accommodates your business needs.

4. Require the employee to follow your regular notice requirements for processing leaves. The current FMLA regulations generally allow you to require employees to follow your regular notice requirements for the need for leave. Accordingly, you generally can require employees requesting unforeseeable intermittent leave to provide the appropriate notice under an established “call-in” or similar procedure.

You should require employees to follow your regular established policies regarding notification of leave, and you should be willing and able to discipline employees who fail to do so unless they can prove they were unable to comply with the policies.

5. Consider a temporary transfer. If the need for intermittent leave is based on planned medical treatment for an employee or his family member, you can temporarily transfer the employee to an available alternative position that better accommodates his need for recurring leave.

Although the alternative position must have the equivalent rate of pay and benefits, it need not involve equivalent duties as long as the employee is qualified for the position.

6. Don’t pay for the leave—require substitution of paid leave if permitted. You can’t require substitution of sick leave during CFRA leave, except for the employee’s own serious health condition, or require an employee on pregnancy disability leave (which runs concurrently with FMLA leave but not CFRA leave) to substitute vacation or paid time off.

Confused about an important leave-related issue? Don’t be.

However, you generally can require substitution of paid leave for CFRA and FMLA leave for employees in unpaid leave status. Even when substitution isn’t allowed, however, you don’t have to pay employees, including exempt employees, on intermittent leave during their absences. 

Tomorrow, information on leave patterns that can indicate abuse—plus an introduction to a comprehensive leaves resource, specifically for California employers, that you won’t want to be without.

Download your free copy of Notice Requirements for CFRA and FMLA: California Labor Laws today!