Minimize intermittent leave scheduling issues

In California, employers have to juggle both FMLA and CFRA laws, and both allow protected leave on an intermittent basis. Intermittent leave is perhaps the most difficult aspect of FMLA/CFRA leaves because it presents operational and scheduling issues and inconveniences that can be frustrating for employers. Understanding intermittent leave and what can be done to minimize these frustrations and scheduling issues can go a long way toward easing the implementation of FMLA/CFRA leaves.

What is intermittent leave?

“FMLA defines intermittent leave as leave that’s taken in separate blocks of time or on a reduced leave schedule.” Mary Topliff explained in a recent CER webinar. It must be due to a single qualifying reason, and there must be a documented medical need for intermittent leave (i.e. a medical need that is best accommodated through intermittent leave or a reduced leave schedule).

The need for intermittent leave can be either for the employee’s serious health condition, or to care for a family member with a serious health condition.

Additionally, intermittent leave may be planned, such as scheduled follow-up appointments after a major medical issue, or it might be unanticipated, such as the inability to work due to a flare up of a chronic condition.

How can scheduling problems be reduced?

FMLA and the California equivalent, CFRA, both give employers some options when it comes to minimizing the disruption caused by employees who need intermittent leave. In general, there are several options:

• Require employees to schedule foreseeable items during time off when possible. “Under FMLA it says that the employee must make reasonable effort to schedule their time off to minimize the disruption to the operation of the business for planned medical treatments.” Topliff told us.
• Set up reasonable advance notice call-in requirements for all absences. Be consistent. It’s also acceptable to validate that the absence pattern conforms to the information on the medical certification provided when the employee began taking FMLA/CFRA leave.
• Temporarily transfer the individual to a different role during the leave period if applicable. Both FMLA and CFRA allow this for planned medical treatment (i.e. foreseeable absences). In other words, the employer may transfer the employee temporarily to an equivalent alternative position that better accommodates the intermittent schedule. That said, the transfer must also comply with ADA and with any collective bargaining requirements. It must have an equivalent rate of pay and benefits. The employer must transfer the employee back to his or her original job when (if) the need for intermittent leave ends.

The above information is excerpted from the webinar “FMLA/CFRA Abuse:
Practical and Legal Ways to Prevent Employees from Working the System.” To register for a future webinar, visit CER webinars.

Mary Topliff, Esq., founded the Law Offices of Mary L. Topliff in San Francisco, specializing in employment law counseling, training, and compliance, while focusing on practical solutions to avoid costly legal issues. Topliff is also a published author and frequent speaker on legal issues impacting the workplace.