FMLA Intermittent Leave: Don’t Let Employees Beat the System

by on January 13, 2010 · 49 Comments POSTED IN: HR Info Center

You can put a stop to rampant intermittent FMLA abuse

You’d have to be made of stone not to want to help out a co-worker who’s genuinely sick or needs intermittent FMLA time off to handle a family crisis. But people who try to beat the system, using family medical leave to malinger at your expense, are another matter. FMLA intermittent leave is particularly open to this kind of abuse. There are dozens of real-world stories like this:

  • A nurse who gets migraines and needs time off on Fridays, Mondays and the day before or after a legal holiday.
  • An assembly-line worker whose children are sick so often they’d be held back a grade if all the absences were truly legit.
  • A salesman who takes off for physical therapy and ends up on the golf course for the rest of the afternoon.

Intermittent FMLA: Not a free ride

FMLA intermittent leave is not the handout some employees think it is. There are ways you can tighten up on intermittent FMLA abuses without running afoul of complex rules and regulations. Here are specific steps:

  1. Require scheduled FMLA intermittent leave. Intermittent FMLA allows for leave in small blocks of time, but it also gives you the right to insist that any time off is scheduled “with reasonable notice” so that it does not disrupt your work flow or operations.

    Example: Calling out sick in the morning after spending the previous night at a rock concert isn’t “reasonable notice” and need not qualify as an intermittent FMLA-protected absence.

    In addition, the law requires that employees must “make a good faith effort” to get any necessary medical treatments during off-duty hours or on their day off.

  2. Find a second medical opinion to justify intermittent FMLA. When an employee asks for FMLA intermittent leave, insist on a medical certification from their doctor that specifies the projected number of treatments, dates, and the projected recovery period after each treatment. With an employee’s sign-off, you can have a company-paid doctor speak with the employee’s provider both to confirm the treatment and to see if treatments can be scheduled without missing work.

    Key point: Experts say getting more specific information up front, not just “a note from the doctor” is essential to curbing potential abuse of intermittent FMLA.

  3. Require monthly FMLA re-certification. The law gives you the power to require medical re-certification at least once every 30 days, to ensure that the need for FMLA intermittent leave continues to exist. Furthermore, the law says the employee must pay for this re-certification. Costly co-pays can serve as a disincentive.
  4. Transfer the worker to a different position if doing so would make intermittent FMLA absences less disruptive.

    Spelling out this option, and making clear that you will use it if needed, can serve as a disincentive.

    Two cautions: (1) Pay and benefits need to remain the same, and (2) the transfer cannot be punitive in nature.

  5. Tap accrued vacation or sick pay before approving FMLA intermittent leave. Once accrued sick time or vacation time is used up, you can dock pay for any FMLA intermittent leave, in whatever increment of time your payroll system allows.

    Note: You can freely dock salaried workers without worrying that doing so will reclassify them as hourly under the law. Intermittent FMLA regulations specifically allow this.

Cutting FMLA intermittent leave overhead

Employees taking FMLA intermittent leave are not immune from disciplinary action, termination or layoff.

True, you cannot fire someone just for taking intermittent FMLA leave, but you can take adverse action for any other legitimate reason, such as violating company rules or poor performance.

Most common reason: Employees pinch-hitting for an absent worker discover what a mess was left behind. Many courts have ruled that such newly discovered performance problems are legitimate grounds for dismissal.

Source: www.findlaw.com

  • aaron12121212

    This was really helpful! I am a manager and this short post filled in some areas that our HR department just glossed over. Thanks.

    • Aine

      Be very careful of this article, because if you do all the things “suggested” it will most certainly guarantee a FMLA interference lawsuit.  Most of what is mentioned in this article is going into some VERY grey areas; anytime you try to “limit” the use of FMLA to an employee who is qualified you need to make sure it’s completely legal.  I would not take the advice of this article at all, check with your own employment lawyer and make sure they look into recent cases.

  • Helene Roy

    If you are on intermittent FMLA leave. Can your job be terminate reason: Job eliminated

  • JR Jordan

    Thank you for such useful information. Question: how is the 12 weeks of leave calculated, is it 60 days for a per diem paid employee who normally works Mon-Fri? 480 hours for hourly personnel working 8 hrs/day, 5 days per week? when does the employee reach the 12 week maximum?

  • PATSY

    IS FMLA A ROLLING THING OR IS IT THE FULL AMOUNT AT THE BEGINNIG OF THE 1 YEAR OF GETTING YOUR PAPERWORK FOR FMLA FROM YOUR DOCTOR?

  • Kimberly Hawkins

    This was awesome

  • Honesty/Integrity

    How Pathetic!! I suffer from Migraines and I am harassed each time I have an episode. I understand that there are a few that cause the rest to have to suffer; but when you’ve been to multiple doctors for relief and had MRI’s to assess the issues, maybe harassing the employee only causes discontent and negative energy in the working environment. Studies show that people are more productive in a happier, healthier environment with employers that are truly concerned for your wellbeing. An employee is an asset and should be treated accordingly; abusers and liars should be fired. How difficult is that? Deception and bold-faced lies should apply to HR departments also..i.e. Smurfit-Stone.

  • Honesty/Integrity

    How Pathetic!! I suffer from Migraines and I am harassed each time I have an episode. I understand that there are a few that cause the rest to have to suffer; but when you've been to multiple doctors for relief and had MRI's to assess the issues, maybe harassing the employee only causes discontent and negative energy in the working environment. Studies show that people are more productive in a happier, healthier environment with employers that are truly concerned for your wellbeing. An employee is an asset and should be treated accordingly; abusers and liars should be fired. How difficult is that? Deception and bold-faced lies should apply to HR departments also..i.e. Smurfit-Stone.

    • Daenae74

      I am in the same boat.. Im am constatly harrassed, and treated unfairly.  I do not have poor work performance but my wonderful supervisor always cares to leave out any good thing that I have done for this company… However there is one person in my office that takes months off at a time for depression…. this only happens when the kids are out of the school for the summer… But thats my boss’s pet…

    • Snakeeyes

      When your “FMLA” starts affecting the every day routine of your co-workers and your “shift” is safe because you are on FMLA and bosses are afraid to do anything except make your fellow co-workers work 12 hour shifts and off-shift others to cover then I take exception. I have suffered from migraines since I was about 5. Shots, MRI’s eye doctors you name it yet I only miss my 5 days a year unless they are so bad (and I know there is enough coverage) to take a day off. I got an idea. When people are on FMLA maybe they should think of their co-workers and change their shift (If possible) to a shift where it is less taxing on your fellow co-workers. But this is just a pipedream and as long as FMLA ers have this to hind behind I will continue to think it is BS.

    • Megansweet18

      Your sorry a#@ needs to go to work and stop playing the system.

  • Mrcorrect

    You are scumbags. You should mention that any form of retaliation in the workplace for someone being sick is not only illegal, but the company probably will and should face many, many cilil suits. Have fun paying out all those attorney fees + back pay + settlement costs!

  • James Evans

    This sounds like a bunch of shit aimed at defeating the fmla act. any employer can claim that the employee was not sick! I experienced this when my father passed away, he was dying of cancer and when he would become very sick the hospital would call in the family saying he may not make it through the night, this happened several times before he passed away, I was given every shitty job they could think of after that and I finally retired from the job because I could not take the stress of the workload placed upon me after I had taken the time off for my father [My FATHER] The only Father I will ever have.

  • Edmcc62

    mt wife had hip replacement out 9 weeks… now we find out she has a tear in her rototor cuff and will need shoulder surgery and her might be out 4 to 6 more weeks. is fmla per issue or per year?
    she has been at her job 16 years all her hr dept says is that they can’t do anything and they can not hold her job. any help

    • Kelly

      Since this was over a month ago, I hope you have figured something out on this. The first thing is to look at the paperwork she received after her first FMLA (it was FMLA, right?). She should have received a notice that told her several things, including how her company calculates the 12 months that make up a “year” for FMLA. If you cannot find this, she needs to ask her FMLA administrator. The company can decide if their FMLA year is calendar year, a specified period, or a “rolling” 12-month period (meaning if she was on FMLA last October 10, then that day drops off and is again available to her October 10 of this year).

      It is a total of 12 weeks per 12-month period of FMLA, regardless of how many FMLA-qualifying events you have. So, in your wife’s case, it really depends on what her company’s “year” is. Find that out and she can better judge when to have the surgery (if she’s able to put it off at all). If it’s covered under FMLA (which will be at least 3 weeks of it…they can’t deny FMLA because it will be longer than available FMLA leave…but when she runs out, they have the right to terminate or whatever if they haven’t allowed for a company-extended medical leave), they will have to hold her job. The can’t deny it (unless she’s a “key” employee, but if they allowed her to be out for 9 weeks before and she hasn’t changed jobs, that’s very improbable).

      Good luck!

    • Cmay

      if i am correct, it is 12 weeks per rolling yr. example, if she was out 2/1/10 – 3/28/10 – she begins regaining that time back on 2/1/11 and by 3/28/11 she would have a full 12 wks available again. In this economy, I would probably check with the Dr. and see if there is anything you can do to hold off surgery for a little while, ie brace or sling, cortisone shots, something so that she can regain some of that FMLA time, then she would not be faced with trying to find a new job when there are very few to be found.

  • Anonymous

    Thanks for your comment. We can’t respond to questions about specific
    situations or provide legal advice, but we invite other readers to post
    comments or responses to this question. We encourage you to seek guidance
    from your HR department or, for legal questions, consult an attorney.

    Michael Boyette
    Executive Editor
    Rapid Learning Institute
    PO Box A
    Morton, PA 19070

    mboyette@rapidlearninginstitute.com
    484-479-2715

  • Kelly

    While I agree there can be abuse for intermittent leave (I have seen it, but I have also seen employees who need this), I have to say this article is bad and isn’t even all that accurate!

    First off, IF an employee happens to say they were at a concert and hungover, fine, that’s not FMLA. BUT just because someone was at a concert then gets (or even claims to get) a migraine the next day is STILL covered by the FMLA (if they have intermittent FMLA for migraines, of course). An employer cannot deny FMLA because it thinks they were just out too late the night before unless you can prove fraud (which is very hard to do).

    Second, 30-day recertification is fine and dandy…UNLESS the doctor has specified a time period on the FMLA. If he states that the employee will need intermittent leave to care for his spouse during epileptic episodes for the next 4 months, and the employer has approved this leave request, then they cannot recertify it until those 4 months are up (unless other parameters are exceeded…like if it says “3 times per month” but this month it was 5…or if something questionable starts happening…like the employee is taking every Friday and Monday off).

    Third, not illegal, but pretty stupid for a company: make sure your company FMLA policies have the employee use up vacation for intermittent leave DURING their leave. The FMLA allows paid time off to be used in conjunction with FMLA, so it is NOT an either/or situation. As an employer, you don’t want to have someone off for a total of 12 weeks, but then get another 3 weeks of FMLA coverage because you didn’t count the first 3 weeks as FMLA, but only as vacation.

    With the updated regs of last year, I would have expected this article to be more helpful and WAY more factual. It makes me distrust this entire website.

  • Its4star

    if you are totally commissionbased and no hourly pay salesperson, how does intermittent leave effect the categories one must meet to be at standard ,i.e., sales standard — is this adjusted also or just the time on site of workplace–where is this defined in the flma law—thanks,

  • TJ

    Your articile is poorly written and seems to encourage the mistreatment of those already in pain and need. I’m not sure you understand what is is like to be disabled, you feel horrible that you cannot perform in the same capacity as before. We don’t need people like you scaring us into “compliance” when a MEDICAL PHYSICIAN has documented a severe illness. It is bad enough that we suffer from a form of harrassment which cannot be proven: we are consistently spoken about behind our backs, even if we are still performing our job duties excellently. Meanwhile the employee is nearly knocking on deaths’ door and “boo hoo” a boss didn’t get an email printed. An email that came from their own inbox that they themselves could print on their own. Maybe if we get rid of the inept bosses, we wouldn’t be so ill (stress causes flare ups in chronic conditions). Bosses that make 10X as much as you do , but you do all the work. I’m sure there are those that take advantage of intermittent FMLA, but don’t group everyone together and please don’t post things that are inaccurate.

    Did I mention that before going on intermittent FMLA, I worked 12-15 hours a day (exempt employee) as a manager for almost 10 years? It took FOUR people to cover for me on maternity leave. I was even doing other peoples’ jobs with no raises, incentives (actually someone got paid 10K for a job I did, no apologies or compensation). Most of my health issues are from this. My thank you for attending physical therapy twice a week (a loss of 1 hr per week; although I have 3-4 hours of working lunches/meetings a week) is being placed on intermittent FMLA so they can further take from me.

    Intermittent FMLA is a TWO way road, respect of employer for employee and vice versa. Shame on employers that use fear and pressure on your valuable employees.

  • Deanandjean04

    I am wondering, my HR department considered Intermittent leave for FMLA as a “pre-scheduled appointment” and put on my paperwork as such. So when my disabled husband had surgery scheduled, my manager denied my request for time off and stated to just call in and use the FMLA excuse. Then I received a letter today that my FMLA has been canceled for the year (it started in July 2010) because I have been using it for his emergency room trips and an unscheduled surgery. They tell me that I was only entitled to 16 days of FMLA…and need to re-apply.

  • jess

    With intermittient FMLA do you haev to give advanced notice? I mean, we have an employee who will call in 1.5 hours before the begininning of her shift to report of for work for “irritable bowel” or fibromyalgia, both of which her physician approved her for FMLA. If i am understanding this correctly -that does not constitute reasonable notice.

    • Anonymous

      Thanks for your comment. We can’t respond to questions about specific
      situations or provide legal advice, but we invite other readers to post
      comments or responses to this question. We encourage you to seek guidance
      from your HR department or, for legal questions, consult an attorney.

  • Nedwardsobs

    fmla calcuations are done based on a 5 day work week or do you include weekdays when trying to determine the date that the 12 weeks exhaust?

    • Anonymous

      Thanks for your comment. We can’t respond to questions about specific
      situations or provide legal advice, but we invite other readers to post
      comments or responses to this question. We encourage you to seek guidance
      from your HR department or, for legal questions, consult an attorney.

  • Cindysuezoo

    I submitted a legitimate FMLA form to my employer. My team leader said, her dept. sucked because, everyone is old or sick. My supervisor, said you pushed the company and now they are pushing back. Get out of my dept. and take another position. If we give you another position, it will be part time. That is what they did. Because I am now part time, I no longer qualify for long term or short term disability. I would have been there long enough to finally have three weeks vacation each year, I now get 24 hours. Was this lawful on their part?

  • Amnesialbtech

    I suffer from Miner’s disease, Prenacious Anemia, and Chronic Fibromialgia. I recently took two weeks off with prior notice being I am pregnant and unable to take all my medication that is required to maintain my health issue’s. Prior to my return to work I was told my job title was being changed and yet have to still fullfill all my job duties required under my own title. This is in benefit for my company. However, there are other employee’s at my complany that could pick up my responsibilites when I am out yet they don’t. Is this legal? They say FMLA is there to protect your job and yet after 14 yrs I feel like this is their way of punishing me? Need some advise!

  • PeachyKeen

    wow, as a mother to a child with Asperger, Tourette syndrome, I find this so absolutely offensive. I honestly have not witnessed anyone abusing this system but knowing how people can be I am sure they do … I have however, witnessed my employer terminating people who have taken this leave … of course, they’re attorneys and they are not afraid to take on the law ….

  • diana

    i have returned from my leave of absence. but i am not getting the hours that i am entitlied to.. much younger new employess are getting more hours than me.. for instance others are getting 40 hours and i am only getting 30..new people that are younger and are paid less are getting more hours. am i no entitled to get the hours i was getting before my leave?

  • Lokelani4_2005

    i am on fmla for my back and my co workers constantly talk behind my back, talked to a supervisior two months ago about my condition and how i feel like they are trying to take my position from under me and give it to someone else she then told the other co workers in the workplace about what i have said.. i been treated like crap no one then talks to me, when i ask a question they dont respond with the other coworkers complaining they moved me into a different position and i get to keep the same pay and the same title but i dont get to perform the duties.. i feel so uncomfortable when i return to work because i am out when my back hurts and i can walk or stand cause it hurts so bad..

  • guest

    I am harassed each time I have an episode.when i call off i have to say[ fmla Migraines] and other employees are around when this is played and i have to here snide comments and be razed by other employees is my employer violating FMLA rules by letting others know about my issues it is causing me discontent and negative energy in the way i work what can i do to stop this? its not right now that everone i work with is making it a place i dont want to be

  • Carloca40

    my doctor didnt fax my fmlapaperwork to the comany i worked for and i was fired who at fault?

  • vipernsx

    If a person has a migraine condition are they not allowed to go to concerts? I’ve had a brain tumor removed from my head which has now left me with debilitating migraines amongst other medical issues. I only wish I didn’t have to battle with them on a daily basis and only wish I could go to a concert without the potential consequences the following day. If the moron who wrote this article could live his life suffering with such a condition for only 6 months or watch a loved one go through the same pain of having a headache, every day of their life, he’d quickly change his tune.

  • Michi830

    I would like to know what types of conversations that my boss/supervisor has with another employee are ok to have when I use leave relating to my intermittent FMla. It seems every time I have an episode I am hearing what is wrong with me from other employees is this a violation to my rights?

    • MisMgmt

      Absolutely!!!! Your company is bound to keep all of your medical history strictly confidential and if they don’t, you have grounds for a lawsuit!

      • BigTex

        I would agree with you IF you can prove that boss/supervisor ARE actually telling other people PHI (protected health information). However, I believe it is the coworkers who are talking among each other. They KNOW you have a condition and probably need to be educated. However, it is none of their business.

  • Sissyluz

    This is a prime example of how management violates the righs and protections of employees who qualify and use FMLA.  Maagment may not like the use of FMLA but they sure better accept it and follow the letter of the law.  There are built in remedies to curtail any “abuses” but for anyone who does not have complete access to an employees medical records as protected by HIPPA,  it would be next to impossible to know with any certainty that there is any “abuse” going on.  Employees need to educate themselves and protect their rights and contact the Department of Labor or Office of Hours and Wages to file a complaint against employers who violate their rights!!!

  • ScammerHater

    I have worked for the same company for over 10 years.  Up until 3 years ago, there was only one person, who used FMLA due to the terminal illness of her husband.  Due to an expansion of our department the company hired 12 new employees.  It turned out that most of these employees were co-workers at one time or another, and follow each other from Job,  to Job.  Well, one by one, they applied for FMLA, after using up all of their Sick Time, and Vacation Time.
    It has been never-ending, and,  of course,  the rest of the Honest employees, are left to pick up the slack.

    There is a “ring-leader” who apparently knows all of the  “Ropes”

    How do they get away with this ?  Why would a company put up with this ?

  • Nefazodone

    FMLA is SO abused.

  • Fourfairs

    I am amazed at the thought of requiring monthly recertifications of need of fmla because “Furthermore, the law says the employee must pay for this re-certification. Costly co-pays can serve as a disincentive.”

  • Jspitty21

    i was out on fmla to have a partial knee replacement and went 10 days over the 12wks.had spoke with my mgr. several times while i was off.let him no my exact day i would be released to come back to work.i was do back on a tuesday. he gave my job away on monday.told me they would find me a position in the company in a couple of weeks. so since i was off with no income i requested my holiday vacation pay that i had left.they did me a direct deposit in my bank acct. 3 days later they did a reversal on that deposit without a word to me.still havent got or a place to work or my money. it looks to me after being on this website that the little people dont count and all the laws pointed out on here are for the people who already have the money.

  • Renee Rister

    Can an employer force an employee to take continuous FMLA in place of requested intermittent FMLA because it would be difficult to back fill the job of the employee on leave intermittently?

  • Like Glass

    Can they legally deny you return to work even when your own physician says you are ready, and the delay ultimately forces you to use up your FMLA allowance of 12 weeks a year?  My Dr said I was clear after 8 weeks, but my employer wouldn’t let me come back for 4 more weeks and they made me jump through hoops to come back so if I had any issues with that injury after my return, it would have fallen outside of FMLA protection.  Fortunately, I didn’t but I found out I was pregnant a short while later and I was advised I don’t need to worry about FMLA protection.  I will be outside the 12 months but I don’t trust them.

  • Tired

    What do you do hen your employer/HR department allows those on FMLA just do whatever they please? They party during the weekend, brag about what they did..then call off on Mondays and Tuesdays, then Friday’s? We have complained and now have been told to shut up about it. How does one’s condition only afflict the person during the work week? This is EVERY week. Those who are left to pick up the slack are tired of watching   ‘convenient symptoms’ give this person days off with FMLA only to come back to work refreshed, with new hairdo..only to work 2 days max and the cycle starts again. Unfair and it’s abuse of a well meant law.

  • CO-Worker of an FMLA abuser

    You people and your bleeding hearts for FMLA. Understandable it is needed for some people. Rightfully so. But to have your shift held (even though it is extremely taxing on the people you work side by side day in and day out with and you refer to them as being “your friends”)  because your boss is afraid to move you to another shift where it is less noticeable when you take a day off is completely wrong. I understand if you need to take some time off because you have an illness or the stress gets to be overwhelming but maybe you could think of the people you work around and how it affects them. Maybe someone with FMLA could go to their boss and say ” hey boss I know this is very hard on my fellow co-workers and I would like to do what I can so it takes a little pressure off them. Put me on a shift where if I cannot make it it is not going to affect my co-workers as much.” Most companies have a limit on people per dept. So its not like they can just go out and hire someone to cover when the person cannot be there. All I am saying is if you are on FMLA think of the people you work with at the very least.

  • Bishop1234321

    I think it’s a joke jhow some of the people are calling this article bad. First of, this is actually a very well written article that garners a ton of advice to the people that are getting burned most by FMLA, the employers and the coworkers that have to pick up tha slack. There is a girl in my office that takes time off for FMLA but only on Mondays and Fridays, she schedules last minute and she even took a week off to sit at the bedside of a friend that was in ICU. If that isn’t abuse I do not know what is. Why can’t she visit ICU before and after work. She is a complete disgrace to the people who do need FMLA and I hope she gets canned. Also if you suffer from migranes you should do wehatever it takes to prevent them, like not going to concerts…. This article was a huge help and was well written, it’s those of you that cheat the system that do not like this article..

  • Katieh

    I really wish I could just claim that you have migraines and BAMM you would feel and experience what Migrainurs go through!! 

  • truthemc

    “In addition, the law requires that employees must “make a good faith
    effort” to get any necessary medical treatments during off-duty hours or
    on their day off.” This is actually not a true statement. It actually reads as this, ”

    (2) DUTIES OF EMPLOYEE.–In any case in which the
    necessity for leave under subparagraph (C) or (D) of subsection (a)(1) or
    under subsection (a)(3) is foreseeable based on planned medical
    treatment, the employee–
    (A) shall make a reasonable effort to schedule the
    treatment so as not to disrupt unduly the operations of the employer,
    subject to the approval of the health care provider of the employee or
    the health care provider of the son, daughter, spouse, parent, or covered servicemember of
    the employee, as appropriate; and”

    Which can also mean to schedule necessary treatments during work hours that are non-critical such as early morning or late afternoon. The above mentioned statement can be misleading.

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