Handling Tricky FMLA “Intermittent” Leave Situations

One of the toughest areas for managers and HR professionals to manage is “intermittent” leave under the Family and Medical Leave Act (FMLA).   Intermittent leave is allowed to be taken for serious health conditions in small increments (for a few days or hours) and employees do not necessarily have to give advance notice to the employer.  For example, an employee who suffers from unpredictable migraines may wake up one day with a headache and call out sick.  As long as the employee has otherwise complied with the FMLA and her employer’s policies, her sporadic absences due to migraines will be FMLA-protected.  And conceivably, the employee could use all 12 weeks of her annual FMLA allotment to be irregularly out of work due to her migraines.

The unpredictable and sporadic nature of such intermittent absences can create staffing and administrative challenges.   This pattern can also set up frustrated supervisors and managers who react negatively to the frequent leave requests for retaliation claims down the road.

There are things, however, employers can do to help curb intermittent leave abuse.  One of the best ways is to use medical certifications to your advantage.  Anytime an employee requests FMLA intermittent leave, he/she should be required to submit a Medical Certification form, which can be found at www.dol.gov.  Be sure the health care provider completes the expected duration and frequency of the leave.  (If not, ask the employee to submit a completed form).  Then, monitor the employee’s use of intermittent leave to be sure it is consistent with the Certification.  For example, if the Certification states the employee’s headaches occur twice a month and she only needs a few hours to recover, but the employee calls out six times a month and/or is absent for several days at a time, you may need to have a discussion with the employee and seek recertification.

Another tip:  have employees sign an “acknowledgement” form when they initially request FMLA leave.  By signing the form, employees personally certify that their need for FMLA leave is legitimate, that they are taking the leave for the stated reason, and they understand they can be terminated for misusing FMLA leave or for making false statements about their leave.  For example, the form could include:

I have requested FMLA leave for _________(dates) due to _________ (reason).  I understand that these absences are being tracked as FMLA-qualifying leave and will count against my FMLA leave entitlement.  I certify that the stated reason for my leave is truthful and accurate.  I further understand that misuse of FMLA leave and providing misleading and/or false information about my leave may result in discipline, up to and including termination of employment.

This certification would hopefully help achieve compliance with your organization’s FMLA rules and deter employee misuse.  It will also enable employers to focus any necessary investigations on an employee’s false statements, which might provide a “cleaner” reason for discipline, rather than fraudulent use of leave.

Other things an employer can do to help manage intermittent leave situations are transferring the employee temporarily to an alternate position which better accommodates the recurring need for leave and requiring the employee to make reasonable efforts to schedule the treatment/appointments when they will not disrupt operations, such as before their workday begins or after their shift ends, or on weekends.