FMLA intermittent leave: Six tough questions

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.