Managing intermittent leave can cause confusion and headaches, yet it is a required aspect of compliance with the FMLA. However, the proper use of medical certification is one of the ways to both manage the leave properly and reduce the risk of intermittent leave abuse.
“Medical certification is a powerful tool to control and monitor intermittent leave.” Charlie Plumb told us in a recent BLR webinar. “The medical certification for an intermittent leave can be required for each medical condition – so if I [an employee] have asthma and migraines you can require medical certification for each – and you’re entitled to seek medical certification for the same medical condition each leave year.”
When getting medical certifications, if you use the standard form, Section III is to be completed by health care provider. It requires the healthcare provider to identify and/or confirm:
- The employee requires treatment visits at least twice per year. In terms of treatment required, this is the minimum threshold for a chronic condition to qualify as a serious health condition under the FMLA regulations.
- Whether or not the employee has been referred to others for treatment.
- Whether there is a need for follow-up treatment. If yes, then they should describe the schedule of the treatments and the duration of appointments (dates, types, and duration). Having this information in the medical certification not only allows an employer to determine whether an employee is entitled to intermittent leave, it can be a good source to determine whether the employee might be abusing the intermittent FMLA leave (such as by taking more time off than the medical provider indicated would be necessary for treatment).
- Whether there is a need to work part-time or for the employee to be on a reduced schedule. If yes, then they must specify the schedule that is required.
- The frequency of flare-ups and the duration that these should typically last, if applicable. Much like treatment duration, this information can be used by the employer to see if the employee might be abusing the intermittent leave.
Beyond the medical certification, it is important for employers to understand that self-treatment is often okay during intermittent leave for episodic or chronic conditions. “Other types of care require us to prove we’re seeing a health care provider on an ongoing basis. Under the [FMLA] regulations, it’s okay for employees who have got certification of a chronic or episodic condition to self-treat.” Plumb explained. “Once a healthcare provider has adequately certified that I do suffer from a chronic, episodic condition, I don’t need to go see him or her every time I have a flare up.”
“If we make the employee obtain this information from their healthcare provider as a condition of receiving FMLA protected leave, we will have done our jobs. So, the starting point to me is: make sure we’re requiring all our employees – and particularly those who are susceptible or may need intermittent leave [to provide] the medical certification, and look at it when they turn it in. Make sure all these questions . . . in Section III on certification are fully, completely, and adequately filled out by the healthcare provider because that’s the starting point: requiring them to hit that requirement in order to be entitled to intermittent leave at all.”
Once an employee’s FMLA eligibility for intermittent/reduced schedule leave is established, employee eligibility remains established for the same medical purpose during this 12 month FMLA term. Eligibility may be re-determined at the end of the FMLA leave year designated by the employer.
For more information on using medical certifications as one tool to manage intermittent leave, order the webinar recording of “HR’s Guide to Leave Management: How to Avoid Legal Headaches When Coordinating FMLA Leave.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Attorney Charlie Plumb represents management in all phases of employment law and labor relations and also serves as leader of McAfee & Taft’s Labor & Employment Group.