Under the Family Medical Leave Act (FMLA), an employee may be eligible to take protected leave intermittently or on a reduced leave schedule—as opposed to weeks consecutively—when leave is based on a medical necessity or a qualifying military exigency. This means eligible employees may take leave in separate blocks of time due to a single qualifying reason (e.g., their own serious health conditions or that of family members). Or, employees may take leave based on a schedule that reduces the employee’s usual number of working hours each workweek, or their working hours per work day. In each case, the total amount of leave time taken cannot exceed 12 weeks within the employer’s selected 12-month period.
Reduced leave schedules can be particularly challenging to administer. And, unfortunately, the FMLA does not consider any “hardship” the employer may experience in trying to maintain day-to-day operations while adhering to these requirements.
Here are some suggestions for managing the process to balance the obligations and needs of the organization with the employee’s rights:
- Be proactive. Maintain ongoing two-way communications with the employee about planning, using, and recording intermittent leave time, while being careful not to intrude into the employee’s personal medical history.
- Establish an expectation that the employee make a reasonable effort to schedule time away for medical treatments to avoid unduly disrupting your business operations—subject to the approval of the health care provider.
- Question FMLA certification forms that are vague or include blanket statements, such as “intermittent leave recommended”; request more specific information from the employee’s health care provider about the medical necessity for the time off and the expected duration. (Note: Only an HR professional, a leave administrator, or a management official, other than the employee’s direct supervisor, may contact the health care provider for clarification or authentication of a certification form.)
- Ask for recertification from the employee’s health care provider, if an employee’s requests for time off exceed the time stated on the FMLA certification form. (Note: Where you have reason to doubt the validity of the information provided in the initial medical certification form, you can require the employee to see a company-selected physician for a second opinion.)
- If the need for intermittent leave is foreseeable, consider temporarily transferring an employee to a position better-suited for recurring leave or part-time work. The employee must receive equivalent pay and benefits to the original position so he or she is not penalized by the transfer or dissuaded from taking leave. (Note: The alternative position does not have to have equivalent duties.)
- Determine what other laws apply and may need to be considered (e.g., Americans with Disabilities Act, worker’s compensation.)
- Make certain you understand your statutory obligations as an employer and consistently follow your own FMLA-compliant procedures. In addition, track usage; look for patterns; and investigate suspected abuse.
- Do not delay in seeking legal/professional advice if you are uncertain about your obligations as an employer and how best to meet them