Thursday, February 16, 2017

Focus on the FMLA – Part II

Last week, we wrote about some of the Family and Medical Leave Act (FMLA) requirements that can be particularly challenging for employers. This week, we’re going to focus on an aspect of FMLA entitlement that causes employers a lot of confusion: intermittent leave.  The FMLA provides that qualified employees of covered employers may take a few hours a day, a few days a week, or any other configuration of leave that a health care provider determines is necessary to allow the employee to manage a qualifying condition or circumstance. 
Here are some things to keep in mind about intermittent leave:
Qualifying for intermittent leave under the FMLA is essentially the same as qualifying for FMLA leave of a longer duration. The FMLA specifically allows employees to take unpaid, protected leave on an intermittent basis, or work a reduced schedule, when they are affected by their own or a family member’s serious health condition. Intermittent leave can also be used for child care for a newborn or after the placement of an adopted or fostered child. A request for intermittent leave deserves no more or less scrutiny than a request for a leave of longer duration.
Employers cannot require a doctor’s note for every instance of intermittent leave. A health provider’s initial certification of the need for intermittent leave can be required, and just as with other forms of FMLA leave, employers can request a health provider’s recertification of the need for intermittent leave every 30 days, any time circumstances change, or when the employer reasonably suspects the certification may no longer be valid.
  • Calculating leave entitlement for non-exempt employees or employees who work a varying schedule can be a particular headache. Employers should calculate the number of leave hours an employee is entitled to based on the employee’s regular workweek. Even when an employee’s workweek varies, the employer can generally calculate leave entitlement based on the number of hours the employee is scheduled in a particular week. For a truly varying workweek, when it is nearly impossible to determine with certainty how many hours the employee would have worked but for the leave, employers should average the hours the employee was scheduled to work over the 12 months prior to the beginning of the leave period and use that average to determine leave entitlement.
  • An employer can require that any available paid leave and intermittent FMLA leave be taken concurrently.  The employer can also require that intermittent leave be taken in increments determined by the employer’s paid leave policy. For example, if an employee needs to take two hours off work for a medical appointment and the employer’s leave policies require that paid leave be taken only in full-day increments, the result will be that the employee uses up both a full day of paid leave and a full day of FMLA leave. In such circumstances, the employee must actually be given the entire day of leave.  An employee always has the option to take only unpaid FMLA leave for the medical appointment, and an employer can choose to make an exception to its policy and allow the employee to take paid leave in a smaller increment.
  • Intermittent leave can be managed to minimize the impact on operations. Employees are required to consult with their employers to schedule foreseeable medical treatments to minimize the impact of their absences. An employer can temporarily transfer an employee on intermittent leave to minimize the impact of absences on operations, but only if it does not adversely affect the individual. Be cautious here—it is all too easy for a transfer to convey the appearance of punishing an employee for taking intermittent leave or trying to discourage the use of intermittent leave.
We had hoped to cover coordination of FMLA leave with other types of leave in this post, but we’ve decided to leave that for next week. Watch this space for Focus on the FMLA – Part III.
Posted by Laura Bartlow