Best Practices to Maintain Your Workers FMLA Rights

If you’re confused about what your organization’s obligations are when handling intermittent leave issues under FMLA, take heart: You’re not alone! Understanding how to effectively manage intermittent leave under FMLA is one of the most confusing issues HR Professionals face. Don’t make a mistake that can land you in court! When one minor slipup (unintentional or not) can land you in legal hot water, you must have the information you need to protect yourself, your employees and your organization.

These are rights that employers need to fully use in order to provide leave only when legally required to do so and to prevent employees from abusing their leave rights:

1. Obtain required notice of the need for leave from employees: 30 days if leave is foreseeable; if  unforeseeable (chronic, episodic conditions), create and publish a call-in policy and enforce for all forms of absenteeism, not just FMLA—usually within one hour of starting time. (The organization can specify whom the employee contacts—the supervisor, a designated FMLA coordinator, a specific phone number, etc.)

2. Designate any time away from work that is FMLA-qualifying as FMLA leave, even against the employee’s wishes. When employees exhaust their 12 weeks of leave—even if they didn’t want it designated as FMLA—they may be lawfully terminated for failing to return to work within the 12-week period.

3. Use the “rolling year” method to set the leave year

4. Require completed certifications stating medical necessity for intermittent leave

5. Establish a policy requiring employees to “substitute” (use concurrently) paid leave for the unpaid aspect of FMLA leave

6. If no certification, recertification or fitness-for-duty (FFD) certification is returned within 15 calendar days and employees don’t provide information about their diligent, good-faith efforts to have the certification completed, leave or reinstatement can be denied or postponed

7. Require second and third opinions for questionable certifications (not allowed for military leave)

8. In situations in which the serious health condition of the employee or family member lasts beyond a single leave year, require a new medical certification in each subsequent leave year

9. The FMLA doesn’t provide greater rights to employees than if leave wasn’t taken. Use judiciously the employer’s right to lay off, eliminate a position or terminate for cause an employee who is on or has been on leave.

10. Recertify intermittent leaves every six months in connection with an intermittent leave absence

11. Enforce the No Undue Disruptions rule—when on intermittent leave, employees can be required to attempt to reschedule a health-care provider appointment that falls during the busiest time of the day

12. Charge certain time not worked against employees’ 12-week allotment

13. Calculate intermittent leave based upon the shortest period of time that the employer uses to account for the use of other forms of leave, provided that the basis is not greater than one hour and is not greater than the amount of time actually taken by the employee

14. Use temporary transfers on intermittent leaves for foreseeable planned medical treatment—positions that have less impact on the employer’s operation

15. In cases of questionable absence patterns, provide the employee’s health-care provider with a record of the employee’s absence pattern and ask the health-care provider whether the frequency and pattern are consistent with such condition

16. While an employer is not entitled to a fitness-for-duty certification for each absence taken on an intermittent or reduced schedule basis, require one when reasonable safety concerns exist regarding the employee’s ability to perform his or her duties based upon the serious health condition for which the employee took FMLA leave. The employer may require an FFD for such absences once every 30 days.