By:   Elizabeth Bradley

Most employers are well versed in the FMLA requirements; however, I recently received a call from one of our hospitality clients seeking guidance on administering intermittent FMLA  leave.  Specifically, the hotel was seeking advice on how to manage a Housekeeping Department employee who was approved for intermittent FMLA leave and had recently increased the frequency of his days off with little or no notice of the need for leave. 

Notably the FMLA and supporting regulations do not provide much guidance for employers. It is clear from the regulations, however, that intermittent FMLA leave was initially contemplated to allow employees time off for scheduled medical appointments.  But, as all employers have probably experienced, intermittent leave is more commonly used by employees to take periodic days off when their medical condition prevents them from being able to work. This places employers in the difficult position of having to provide employees with leave without the ability to properly staff its business due to the lack of notice.

So, what should an employer do…

1.         Request Recertification of the Medical Documentation: The strongest tool provided by the FMLA is the employer’s right to require recertification of the medical documentation. 

Recertification may be required when the original certification expires or every 30 days, whichever is longer. However, regardless of the length of the original certification, employers are permitted to request recertification every six months. In addition, recertification can be required in less than 30 days if the frequency or duration of leave is inconsistent with the original medical certification, if there is a pattern of suspicious absences, or if the circumstances cast doubt on the validity of the original certification. Notably, employers are permitted to provide the health care provider with a record of the employee’s absence pattern and ask the health care provider if the serious health condition and need for leave is consistent with such a pattern. Ideally, recertification will allow the employer to determine whether an employee is abusing his or her rights under the FMLA or if the employee’s condition now requires a full leave of absence.

2.         Ensure Medical Documentation Clearly Defines Intermittent Requirement: Employers should ensure that all medical documentation supporting requests for intermittent FMLA leave clearly sets forth the frequency and/or duration of the intermittent leave. This will provide the employer with a basis for requesting recertification if the pattern of leave varies from the documentation.

3.         Modify Policies Requiring Notice: Employers should modify their existing employment policies to mandate procedures for notification of intermittent leave which require that employees notify Human Resources and their immediate supervisor prior to start of their shift, except in the event of an emergency.

4.         Ensure Proper Tracking: Employers should ensure that they track all time taken off by an employee that qualifies for FMLA leave. Often, employers “lose” intermittent FMLA time, or do not maintain proper documentation of the leave, which results in an employee being granted more time off than he or she is entitled to under the FMLA.

5.         Consider Temporary Transfers: Employers are permitted to transfer an employee on intermittent leave to a position with equivalent pay and benefits if it will better accommodate the employee’s need for intermittent leave. If an employee’s intermittent leave, and lack of notice thereof, is becoming a burden on the business, the employer should consider an appropriate temporary transfer.

While eliminating all abuse of intermittent FMLA leave is not realistic, employers are not required to simply sit back and allow an employee to take intermittent leave on a whim and to the detriment of the business operations.