In the last installment, we covered the rules regarding Family and Medical Leave Act (FMLA) intermittent leave. This article will focus on intermittent leave regarding pregnant employees. Curbing abuse of intermittent leave for pregnant employees can be difficult due to the permissive approach taken by the U.S. Department of Labor (DOL) to FMLA leave during pregnancy. According to the FMLA regulations, a mother is entitled to FMLA leave for incapacity due to pregnancy, for prenatal care, or for her own serious health condition following the birth of the child.
Many courts have noted that pregnancy-related conditions are treated differently under the FMLA than other medical conditions and have declined to require employees to provide medical documentation that morning sickness and other pregnancy-related conditions are incapacitating.
Care of New Child
Employees who request leave after the birth of a child or the placement of a child for adoption or foster care are not entitled to take such leave on an intermittent or reduced-schedule basis. The key word here is “entitled”—employers may voluntarily allow new parents to take these types of leave.
You may require employees to take this type of leave in a single block of time and to use such leave within 1 year of the birth or placement of the child. You must inform employees of this exception if you wish to enforce it. Therefore, if you have such a policy, include it in your employee handbook, notice of rights and responsibilities, designation, and FMLA postings.
Leave due to a qualifying exigency (family military leave) may be taken on an intermittent or reduced leave schedule basis. In order to curb any abuse of leave for a qualifying exigency, the employer should obtain documentation of the need for intermittent leave for the qualifying exigency and carefully document all leave taken.
Employers may use the Form WH-384, Certification of Qualifying Exigency for Military Family Leave, for certification.
Using Certification Policies to Manage Intermittent FMLA Leave
As mentioned above, one of the most powerful tools in curbing intermittent FMLA leave abuse is the use of the medical certification form. Therefore, a strongly worded medical certification policy will empower human resources (HR) and/or supervisors managing FMLA intermittent leave.
Some critical elements of a policy addressing medical certification of FMLA leave include:
- Circumstances requiring certification. Whether the employer will require certification, and under what circumstances. Many employers choose to word this provision generally to allow for cases of employer discretion.
- Making certification forms available. Instructing employees where they may obtain medical certification forms (usually from the HR office/manager).
- Notice of need for certification. Explaining when the employer will notify the employee of the requirement for medical certification and when it is due (no more than 15 days after the request for leave).
- Consequences of failure to provide requested medical certification. Generally, this will result in the denial of leave until it is provided or action under the employer’s established policy for unapproved leave.
- Procedures for second and third opinions. This provision should notify employees that the employer may require an examination by a second healthcare provider—or a third healthcare provider’s opinion if the second opinion conflicts with the original medical certification. The third opinion is final and binding on both parties.
- Notifying employees that the employer may require subsequent medical recertification.
- Fitness for duty. Notifying employees that they may also be required to provide a fitness-for-duty certification upon return to work, or during intermittent leave, as required.
Finally, the employer should establish reasonable and compliant employee notice requirements for all types of FMLA leave (foreseeable and unforeseeable).