HR Management & Compliance

Intermittent Leave Management Under the FMLA

In the last installment, we covered the differences between intermittent leave and reduced schedule leave. This article focuses on intermittent leave management under the Family and Medical Leave Act (FMLA), including information on leave tracking and medical certification.

FMLA

Tracking And Training

The employer should create or obtain a timekeeping system that has the capacity to track intermittent leave in the minimum increment and tag and tabulate such leave as FMLA/intermittent. Ideally, the system would also notify the employer when the employee’s 12-week FMLA leave entitlement is nearly exhausted (e.g., when 3 to 5 days are remaining).

In order to properly document all intermittent leave taken, the employer must train supervisors or other timekeepers regarding FMLA eligibility, notice, and recordkeeping.

Medical Certification

One of the most powerful tools for managing intermittent leave and controlling abuse is the initial certification of such leave. In order to manage intermittent leave, supervisors or other individuals charged with managing leave must be vigilant in requiring that the employee requesting intermittent leave provide certification of the specific need for intermittent leave.

The U.S. Department of Labor’s (DOL’s) medical certification forms enable the employer to specifically ask the employee’s healthcare provider about:

  • Intermittent/reduced schedule leave for planned treatment, and why there is medical necessity for leave and estimate of dates and duration of treatment/recovery periods;
  • Likelihood of unforeseeable episodes of incapacity, why there is medical necessity for leave, and estimate of frequency and duration of episodes of incapacity; and
  • Continuing treatment, the schedule of such treatment, whether episodic flare-ups are anticipated, the frequency of those flare-ups, and whether the employee will be absent from work during those flare-ups.

The medical certification forms specifically instruct the healthcare provider to:

“Answer, fully and completely, all applicable parts. Several questions seek a response as to the frequency or duration of a condition, treatment, etc. Your answer should be your best estimate based upon your medical knowledge, experience, and examination of the patient. Be as specific as you can; terms such as ‘lifetime,’ ‘unknown,’ or ‘indeterminate’ may not be sufficient to determine FMLA coverage. Limit your responses to the condition for which the employee is seeking leave.”

As a result, the healthcare practitioner is forced by DOL’s certification form to estimate the frequency and duration of the condition in terms of times per week or month, and hours or days per episode. Answers of an indeterminate nature may be deemed insufficient and require the employee to secure certification.

Note: If an employer is going to require medical certifications, it is required to provide the employee with written notice of such a requirement and the consequences of failing to provide requested medical certification. This notice may be given in the form of DOL’s Notice of Eligibility and Rights & Responsibilities (Form WH-381, Part B), or a similar document provided by the employer.

In the next installment, we’ll cover intermittent leave regarding pregnant employees and the birth of their children.