Current rules say that, no matter what the reason, an employee who files a claim for FMLA leave within two days of returning from an unscheduled absence is shielded from discipline, discharge or demotion.

That, and a broad definition of what constitutes a “serious medical condition,” can lead to significant abuses, especially when it comes to FMLA intermittent leave.

According to a recent study by the Employment Policy Foundation (EPF), multiple FMLA intermittent leave-taking is up 150% compared to a similar Department of Labor study in 2000.

On average, 14.5% of employees took FMLA leave last year, but that number spikes much higher in certain industries like healthcare and transportation.

Nearly 50% of all FMLA leave takers don’t give notice prior to the very day they take leave, says the study. And 30% provide notice only after the leave has started. Only 35% gave advance notice of a week or more.

There’s plenty of anecdotal evidence of abuses, such as workers who always seem to need FMLA intermittent leave on Mondays, Fridays or the day before or after a holiday – playing havoc with work schedules.

Getting tough

It’s clear from this survey that you can get a high payoff from spelling out FMLA intermittent leave notice requirements, and getting tough about enforcing them. You have the right to insist on reasonable notice before granting FMLA intermittent leave, except in emergencies. Further, an employee must make a “good faith effort” to get treatment during off hours.

Another way to put the kibosh on potential abuse is to insist on detailed medical certification, not just “a note from the doctor.” That certification should spell out the number of treatments, dates and recovery period.

Note: You can require re-certification (at the employee’s expense) every 30 days – or more often if you have reason to suspect FMLA intermittent leave abuse.

Source: Employment Policy Foundation


  • jm perkins says:

    Coordinator of fmla s.e mmontgomery,al said I couldn’t get shorter work hr 5days a week 4 hrs a day because couldn’t lift over 5 lbs. I am a mailhander need 2 lift more weight?

  • pink says:

    This is pretty cynical.  FMLA leave rates are probably up somewhat in correlation with actual sickness rates, because our country is sick (I did five minutes of research on this and that seems to be the case). Also, the economy is rough and there may not be other types of leave available to many people. Healthcare and transportation workers have some of the highest rates of injury and illness regardless of FMLA status. Their jobs are demanding and can be unhealthy or dangerous at worst.

  • truthemc says:

    “Further, an employee must make a “good faith effort” to get treatment during off hours.” What is the legal precedence for this statement?

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