When FMLA Intermittent Leave Leads to Suspicious Attendance Patterns

The Family and Medical Leave Act (FMLA) allows leave to be taken “intermittently” in certain situations. Intermittent leave often presents both logistical and employee relations challenges for employers, which must minimize the effect of intermittent leave on operations and address possible employee abuse while ensuring legal compliance. This article will discuss intermittent FMLA dilemmas and offer suggestions about how to best approach them.

FMLA Complete Compliance

What to do when an employee’s FMLA absences seem suspicious
Suspicious intermittent FMLA leave is a problem encountered by many employers. Fortunately, there are steps you can take to prevent it from becoming a problem. The first step is understanding what the Act allows.

The basics. The FMLA allows eligible employees to take up to 12 weeks of leave (more for the care of a covered military service member) in a 12-month period for any of a number of “qualifying reasons.” The Act allows leave to be taken intermittently provided the medical need for leave “can best be accommodated through an intermittent or reduced leave schedule.”

Certification. You may require an employee requesting FMLA leave to submit a medical health certification from a health care provider to support the need for leave. You should allow an employee at least 15 days to return a certification or recertification (discussed below) unless it is impracticable for the employee to do so despite his diligent good- faith efforts.

Recertification of conditions certified as lasting less than 30 days. If the original medical certification indicates that the minimum duration of the condition will be less than 30 days, you may request recertification of the condition every 30 days in connection with an absence.

Recertification of conditions certified as lasting more than 30 days. If the original medical certification indicates that the minimum duration of the condition will be more than 30 days, you generally must wait until the minimum duration expires before requesting recertification in connection with an absence. In all cases, you may request a recertification every six months (even if the original certification indicated the minimum duration is greater than six months) in connection with an employee’s absence.

Mastering HR Report: FMLA

When suspicious circumstances arise
The FMLA allows you to request recertification more frequently than every 30 days or inside the “minimum duration” period when:

1. the employee requests an extension of leave;
2. circumstances described in the previous certification have changed significantly (e.g., an employee has a pattern of using unscheduled FMLA leave for migraines in conjunction with her scheduled day off); or
3. you receive information that casts doubt on an employee’s stated reason for the absence or the validity of the certification (e.g., an employee who is on FMLA leave for four weeks to recover from knee surgery plays in a company softball league game during her third week of leave).

In seeking recertification for one or more of these reasons, you may request the same information permitted for the original certification. Importantly, you may also give the health care provider a record of the employee’s absence pattern and ask the health care provider if the serious health condition and need for leave is consistent the pattern of absences.

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Bottom line
To recap, there are several steps you can take to ensure that employees taking intermittent FMLA leave are doing so legitimately.

• Recertify as allowed, even absent suspicious circumstances. In all cases, even when suspicious circumstances don’t exist, require that employees on intermittent FMLA leave obtain regular recertification. For employees whose serious health condition is expected to last less than 30 days, recertification can be requested every 30 days (in connection with the employee’s absence). For employees whose serious health condition is expected to last more than 30 days but less than six months, recertification can be requested when the minimum duration period expires (again, in connection with the employee’s absence). When a serious health condition is projected to last more than six months, recertification can be requested every six months.
• Recertify when suspicious circumstances arise. Out of an abundance of caution, only request recertification within the 30-day or minimum duration period when the employee requests an extension of leave or when you have an objective good-faith basis to question the reason for the absence or the validity of the certification. Confirm that any suspicious attendance pattern is indeed a “pattern” (not just one or two missed Fridays) before requesting recertification. If you’re requesting recertification based on a suspicious attendance pattern, attach a supplement to the certification form that identifies the suspicious pattern and asks the health care provider if the serious health condition and need for leave are consistent with the pattern.
• Be consistent. To avoid confusion, develop and follow a consistent procedure to determine when and under what circumstances recertification will be required.