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Handling the Tricky Questions in FMLA Intermittent Leave

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Intermittent leave under the Family and Medical Leave Act (FMLA) can be difficult to navigate and not all intermittent leave requests are equal. Here is a look at some of the most common scenarios and how to handle them.

The FMLA allows employers some flexibility in granting different kinds of intermittent leave. Employees are entitled to take it for serious health conditions, either their own or those of immediate family members. The law also allows use of intermittent leave for child care after the birth or placement of an adopted child, but only if the employer agrees to it. It is the company's call.

It is not always simple, however. If the mother develops complications from childbirth, or the infant is born premature and suffers from health problems, the "serious health condition" qualifier would likely kick in. As always, it pays to know the medical details before making a decision.

Eligibility is not automatic

Companies can successfully dispute fraudulent employee claims to FMLA eligibility.

Consider this real-life example (Brown v. Eastern Maine Medical Center):

A female employee in Maine said she suffered from a chronic condition that made it difficult to make it to work on time. After she racked up a number of late arrivals — and refused an offer to work on another shift — she was fired.

She sued, saying her tardiness should have been considered intermittent leave. Her medical condition caused her latenesses, she claimed, so each instance should have counted as a block of FMLA leave.

Problem was, she had never been out of work for medical treatment, or on account of a flare-up of her condition. The only time it affected her was when it was time to go to work.

The court said intermittent leave is granted when an employee needs to miss work for a specific period of time, such as a doctor's appointment or when a condition suddenly becomes incapacitating. Furthermore, "the FMLA does not provide a blanket excuse for Brown's persistent pattern of tardiness; or require an employer to suggest intermittent leave to an employee who is repeatedly late for work."

Designating leave retroactively

In order to maximize workers using up their allotted FMLA leave, employers can sometimes classify an absence retroactively.

For example, an employee is out on two weeks of vacation but she spends the second week in a hospital recovering from pneumonia. Her employer does not learn of the hospital stay until she returns to work. Upon her return, she tells her supervisor about it, who then informs human resources. Within two days, HR contacts the woman and says, "That week you were in the hospital should be covered by the FMLA. Here is the paperwork."

The key here is that the company acted quickly — within two days of being notified of the qualifying leave. The tactic is perfectly legal, and it could make a difference in the impact FMLA leave time could have on the firm's overall operation. It is also an excellent example of the key role managers play in helping companies deal with the negative effects of FMLA.

Using employees' PTO

First, a no-no: Employers should never tell workers they cannot take FMLA leave until they have used up all their vacation, sick and other paid time off (PTO).

Instead, you can require employees to use their accrued PTO concurrently with their intermittent leave time. Employers can also count workers' compensation or short-term disability leave as part of their FMLA time — but in that case, employees cannot be asked to use their accrued PTO.

The transfer option

Companies can temporarily transfer an employee on intermittent leave, to minimize the effect of that person's absence on the overall operation. The temporary position does not need to be equivalent to the original job — but the pay and benefits must remain the same. And, of course, the employee must be given his old job — or its equivalent — when the intermittent leave period is over.

A few restrictions: The move cannot be made if the transfer "adversely affects" the individual. Example: The new position would lengthen or increase the cost of the employee's commute.

Such transfers need to be handled in such a way as to avoid looking like the employer is trying to discourage the employee from taking intermittent leave — or worse yet, is being punished for having done so.

Cooperation, please

Although FMLA is certainly an employee-friendly statute, employers do have some rights when it comes to scheduling intermittent leave. For instance, employees are required to consult with their employers about setting up medical treatments on a schedule that minimizes impact on operations.

Of course, the arrangement has to be approved by the healthcare provider. But if an employee fails to consult with the employer before scheduling treatment, the law allows employers to require the worker to go back to the provider and discuss alternate arrangements.

Sometimes, it is as simple as taking an employee aside and saying, "I know you have physical therapy, but these 10 o'clock appointments are really affecting work flow. Could you see about scheduling them for after work hours?"

The firing question

Yes, companies can fire an employee who is on intermittent FMLA leave. Despite the fears of many employers, FMLA does not confer some kind of special dispensation for workers who exercise their leave rights.

Obviously, workers cannot be fired for taking leave. But employers can lay off, discipline and terminate the employment of those who violate company policies or perform poorly. When an employee on FMLA leave is disciplined or fired, the Department of Labor (DOL) decrees that the burden is on the employer to prove the worker would have been disciplined or fired regardless of the leave request or usage.

Reductions in force

When an employer has a valid reason for reducing its workforce, the company can lay off an employee on FMLA leave — as long as the firm can prove the person would have been let go regardless of the leave.

Companies should be prepared not only to prove the business necessity of the move, but to show an objective plan for choosing which employees would be laid off.

Misconduct or poor performance

Employees on FMLA leave — of any type — are just as responsible for following performance and behavior rules as those not on leave. But companies that fire an employee out on FMLA will be under increased pressure to prove that the decision was based on factors other than the worker's absence. In addition, courts might well pose a key question to employers: Why did you not fire this person before he/she took leave?

That answer is not always difficult. Many times, employers do not realize how badly an employee was doing until they see the mess he or she has left behind.

The good news: A number of courts have upheld employers' rights to fire employees on FMLA leave — even when the employee's problems were first discovered when the employee went off the job.

Posted In: Workplace Policies/Rules; Family and Medical Leave Act (FMLA); Department of Labor (DOL)

Want to know more? Read the full article by Tim Gould at HR Morning

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