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FMLA intermittent leave: Six tough questions

by on January 13, 2010 · 12 Comments POSTED IN: HR Info Center
How to protect your company and legitimate claims

Got a headache? If you’re like many HR managers, the cause could be yet another FMLA intermittent leave request.

Whether it’s deciding how to handle chronic migraines or docking pay for exempt workers, many HR managers are left scratching their heads.

To provide some relief, we posed the toughest questions we’ve received to FMLA law expert Steve Teplinsky, a partner in the Chicago-based law firm of Michael Best Friedrich.

Should we allow FMLA intermittent leave for migraine headaches?

Yes. While, chronic migraines are debilitating, they’re also near the top of the list of FMLA intermittent leave abuse. The key to abuse-prevention: Remember that your company approves the FMLA intermittent leave certification, not the doctor, Teplinsky said.

Get good, detailed info. Don’t let the doctor get by with checking off the cryptic boxes on the DOL Internet form: “no duration,” “intermittent,” and “as needed.”

Instead, ask for details on the severity, the duration of the illness, the limitations, the effects on the job, and when FMLA intermittent leave will be needed. Then you can evaluate if people can work, how much, and when they can’t. These details will help you weed out FMLA intermittent leave abusers.

Note: You can ask for re-certifications every 30 days at the employee’s expense, and even more often if medical circumstances change or you have a good reason to suspect abuse. Good reasons would include a pattern of taking leave on Fridays and Mondays.

Be wary of singling people out, however: That can look like retaliation. The key is to have a policy that’s consistently enforced.

Can we dock the pay of an exempt worker under FMLA intermittent leave?

Yes. Just as you’d dock the pay if they took FMLA leave, you can dock pay for FMLA intermittent leave. Just remember that the leave doesn’t affect someone’s exempt status.

You may also change how you calculate certain benefits, such as accruing vacation time at a reduced rate. You may not touch medical insurance benefits, however.

Can we ask exempt workers to surrender vacation time?

If your company has a policy that someone must first use up all paid time off before using FMLA intermittent leave, then HR may require workers to surrender vacation time first.

If you don’t have such a policy, then under the FMLA it’s up to the employee to count the time.

If workers come back early from FMLA intermittent leave, how do we count the time?

Say a worker asks for three hours of FMLA intermittent leave, but only takes two and comes back an hour early. Can you count all three hours as leave?

No, you can’t require someone to take more FMLA intermittent leave time than they need.

Teplinsky also says as a practical matter, it’s probably not a good idea to discourage workers from returning to work early.

Is a doctor’s care required for FMLA intermittent leave?

Yes. Here is a “tough-luck” scenario that illustrates the point. Two parents stay home with sick children. One child has a cold. The other child has an ear infection and is taking prescribed medicine. The first parent is ineligible for FMLA leave and the second one is eligible.

Reason: The second child is under a doctor’s care.

What happens if we don’t ask for re-certifications?

Your problems could snowball. Case in point: HR managers at a Chicago business found 250 of 500 dock workers had certifications for FMLA intermittent leave, mostly for hard-to-disprove conditions: chronic migraines, back pain and soft-tissue injuries.

Not only was the number of workers suspiciously high, but the certifications came from the same two doctors. The calendar told a story, too. Scheduling was a nightmare on Fridays, Mondays, and before or after holidays.

HR saw the problem as temptation. By approving so many leave requests and not managing the certifications closely, HR had sent the wrong message.

The solution: Re-certifications every 30 days. The union had to pay for the certifications, and the doctor’s bills took their toll. Most requests for FMLA intermittent leave stopped, except for the few with legitimate medical issues.

Source: Teplinsky, www.michaelbest.com
  • Tamlhut

    I have a documented hstory of excellent attendance until a chronic condition came up. it is documtne medicaly and I only recently found out about my eligibility under FMLA and tuned in the paperwork. I am not actually asking to miss much work, but need to flex my schedule sometimes because of the onset of the muscle spasms that travel thoughout my body when this flares up. it is always unexpected and exacerbated by stressful conditions. I turned in the completed paperwork but have asically been told that if I come in late (even after following call in procedures) I am not protected. The most common time for flareups are after waking early in the morning so this is crazy to me. What exactly are my protections in this case.

  • Tamlhut

    I have a documented hstory of excellent attendance until a chronic condition came up. it is documtne medicaly and I only recently found out about my eligibility under FMLA and tuned in the paperwork. I am not actually asking to miss much work, but need to flex my schedule sometimes because of the onset of the muscle spasms that travel thoughout my body when this flares up. it is always unexpected and exacerbated by stressful conditions. I turned in the completed paperwork but have asically been told that if I come in late (even after following call in procedures) I am not protected. The most common time for flareups are after waking early in the morning so this is crazy to me. What exactly are my protections in this case.

    • rliblogs

      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

  • 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

  • Mike

    If a company does not allow employees to take vacation increments of less that one day can the Company force you to use vacation time for FMLA that was taken in less than 8 hours

  • Myheadhurts003

    Why are you singling out migraines? If you ever had one you might think twice.

  • Bryjac

    i was told today that i would be put on fmla because when i do not have enough work in the area that i was hired to work in and can not be farmed out to other areas because of my allergies to the chemicals in those areas that i am being farm out to. Is this ok for a company to do?

  • http://pulse.yahoo.com/_5QY4C2ULDO5FTN3W4XXZB455IM Leigh

    Can you be repremanded for missing work if you have FMLA papers for it?

    • Kyle

      No, you can’t be reprimandid if you miss work for your medical condition you were approved for under FMLA.  

  • Malinda Sargeant

    If an employee takes a day off as intermittent leave, and their scheduled working day is 12 hrs, do you count 12hrs or 8 hrs against the intermittent leave?

  • Kyle

    If 12 hours is your normal work day, then 12 hours would count toward your FMLA time.

  • Ziadsykyas

    Pls help I am a federal employee in Virginia . I took fmla on
    6-20-2011 to 8-10-2011 and 14-12-2011 to 1-13-2012

    I asked my employer for fmla on 7-13-2012 but the only allowed me to 8-5-2012

    They said they are using the rolling back method????

    Can someone ple explain.. I have medical certificates justifying the absence.

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