Can you force an employee who is on intermittent FMLA to take a set period of leave? The intermittent leave is too disruptive due to the fact that the employee’s absences are more often than expressed in the medical certification.
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Thank you for your excellent inquiry regarding FMLA intermittent leave.
Managing intermittent leave can be tricky; however, employers do have options for preventing and curbing its abuse.
First, note that employees who take intermittent leave for planned medical treatment have an obligation to make a reasonable effort to schedule the treatment so it does not unduly disrupt the employer’s operations. So, for example, if the employee is taking leave in order to obtain medical treatment, you may request that the employee schedule these treatments outside of work hours or at less disruptive times if at all possible.
Second, employers are also given more leeway with respect to job transfers during intermittent leave – an employer may require an employee to transfer temporarily to an available alternative position for which the employee is qualified if that position better accommodates recurring periods of leave than the employee’s regular position.
Finally, and perhaps most beneficial in this case, employers can question the use of FMLA leave when appropriate and can request recertification from the medical provider. Specifically, if the use of intermittent leave varies from the duration and frequency indicated on the initial medical certification form, the employers may ask for a recertification to ensure that the leave is still appropriate and to rule out abuse. Employers can also require recertification if they obtain information that puts the validity of the FMLA leave in question.
In your situation, it sounds as though the employee’s absences are not consistent with the duration and frequency indicated on the initial medical certification, so requesting recertification would be first step to take. This will allow you to ensure that the employee is not abusing the intermittent leave and, if needed, to then devise a more appropriate leave arrangement (which may then include job transfer, regular leave, or reduced schedule leave) to fit the employee’s actual needs.
This excellent article provides helpful guidance on curbing abuse of FMLA intermittent leave and discusses some of the suggestions given above.