Beer, brats and FMLA intermittent leave, ah, summertime has arrived

Arnstein & Lehr attorney Lisa A. Baiocchi

Lisa A. Baiocchi

Many companies seem to notice an interesting trend that creeps up every June and lasts until mid August, or sometimes into the opening of deer hunting season: an increase in intermittent leave requested under the Family Medical Leave Act (FMLA). Perhaps the nicer weather does indeed create a rash of “serious health conditions.” After all, summertime weather arguably does increase employees’ outdoor activity level (including boating, water skiing, bicycling and swimming) which also brings an increase in the likelihood of injuries. On the other hand, summertime weather also brings festivals, beach days, outdoor music events and gardening- activities generally not approved for intermittent leave under the FMLA!

According to a recent study, intermittent leave request under the FMLA is up almost 150% (as measured from the year 2000-2010). Add to that the fact that a majority of FMLA intermittent leave takers do not give notice prior to the very day they take leave, and it is easy to understand why companies get frustrated: not because employees need leave, but because the “surprise” of an employee being at work one day and out another, usually without any warning, disrupts operations and schedules.

Below are some tips for employers to consider in their efforts to curb abuse of intermittent leave.

  1. Insist on reasonable notice and deny leave if appropriate.

Under the FMLA an employee must provide the employer at least thirty (30) days advanced notice before FMLA leave is to begin and this includes leave which is intermittent, if the intermittent leave is foreseeable. For example, planned medical treatments for the serious health condition of the employee or covered family member is subject to this thirty (30) day notice. Additionally the expected birth or placement for adoption of a child is generally subject to this thirty (30) day notice.

If this thirty (30) day notice is not practicable due to a lack of knowledge of approximately when leave will begin or a medical emergency, the employer can insist that notice must be given as soon as practicable, typically within one to two (1-2) business days after leave is taken.

Make sure any notice requirements are clearly written in your FMLA policy or employee handbook, that any such requirements are communicated to the employees, and applied consistently. These are the three “Cs”:  clearly written, communicated and consistently applied!

  1. Make use of second and third opinions.

If you have reason to doubt the validity of the leave as FMLA qualified require the employee to get a second, or if needed, third opinion.

  1. Employees can (and should) be disciplined for things such as poor performance and violation of company rules.

The FMLA does not give employees the right to poor performance when they are at work, such as not meeting quotas or sales numbers, nor does the FMLA allow for employees to act contrary to any workplace code of conduct or work place rules.

For example, if it is a workplace rule that employees who will miss work must personally call in prior to the shift starting and speak with a supervisor, or risk discipline, you may insist that those on intermittent leave do the same.

  1. Transfer employees to another position.

Employees, who have been approved for foreseeable, intermittent leave, may be transferred to another position that better accommodates the intermittent or reduced leave.

Many times employers forget about this option and instead “live with” the disruption foreseeable, intermittent leave creates in its business operations.

  1. Require leave to be taken off hours.

The three “Cs” again: have a clearly written, communicated and consistently applied policy that foreseeable, scheduled intermittent leave should, if at all possible, be scheduled during non-working hours.

  1. Require employee to supply all information allowed.

Back to basics- revisit the regulations concerning what information medical certifications for the FMLA process are allowed to include and make sure your paperwork “asks” for everything allowed under the law.

Many times employers “re-invent the wheel” and use their own medical certifications and paperwork to approve FMLA absences.  Unless you audit what your paperwork “asks” the employee to include and compare it with what is allowed under the regulations, you may be missing valuable information that you are allowed to verify and quite frankly should verify before approving leave.

  1. Require re-certification.

Generally speaking, absent contrary information on the medical certification, recertification can be required every thirty (30) days. In any event every year that the FMLA block of twelve weeks renews, and new FMLA paperwork is filled out, new medical certifications should also be required.

Additionally if you become aware of information that challenges the original medical certification, document your findings and then by all means, ask the employee for a new certification.

  1. Count all allowed leaves concurrently.

If you have short term disability, are subject to a state equivalent of FMLA, or have any other leaves that would cover the employee (such as workman’s compensation) run those leaves concurrently (if doing so would not violate any provisions of such laws).

  1. Pay attention to patterns of absences for abuse.

Every Friday and Monday off during summer? Gone during the opening week of deer season every year? Absent on all Thursdays during the month of July for summertime jazz in the park?

Identifying whether certain employees display these patterns of abuse for leave can save your company countless dollars in lost work productivity. Furthermore when even a few employees abuse leave and other employees are aware of such abuse but do not see the company addressing it, low employee morale likely results. Low employee morale has also been proven to cost companies countless dollars in lost work productivity.

Most employers agree that intermittent abuse leave is not widespread in terms of the numbers of employees taking part. However most employers also agree that even when a few employees engage in this conduct, it does cost the company considerable money best spent elsewhere.

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