Intermittent FMLA leave can be extremely challenging for employers to manage. Fortunately, there are opportunities in the FMLA process which allow you to carefully manage this type of leave more effectively. Here are 3 ways to manage intermittent FMLA leave’s major challenges.
1. Obtain a complete medical certification from the employee.
Employers have the right to ask that a request for FMLA leave is supported with a fully completed certification issued by a health care provider within 15 days after providing the employee with a written notice designating the leave as FMLA and explaining their rights and responsibilities. Certification is critical for intermittent leave, as the condition may sometimes not be a serious health condition. Certification for intermittent leave must include a statement of medical necessity of leave and the likely duration and frequency in episodes.
Certifications do not need to be accepted if there is missing information, but employers must request the missing information in writing and provide employees with sufficient time of at least 7 days to complete the information they are missing. Employers do not, however, need to keep providing the employee with more chances to submit a fully complete certification.
Organizations may request a second medical opinion for FMLA leave to certify the leave (and a third medical opinion, which is binding, if the first and second opinions conflict) when they reasonably doubt the validity of the certification. They can also contact health care providers for the purposes of clarifying information provided on the certification.
2. Manage and schedule leave to reduce disruption to the business.
One of the main reasons that intermittent leave is so challenging for employers to manage is that it strains staffing. Be aware that an employee needing intermittent FMLA leave for a serious health condition does not mean that employees have "free reign" to call off or come in late whenever necessary. Employees need to follow the process and be reasonable. Here are some tactics that employers can use to reduce disruption.
- Ask employees to schedule leave so that it does not unduly disrupt business operations (if possible).
- Consult with employees and help them create a schedule for their leave (if possible).
- Request advanced notice of leave (if possible).
- Track all absences and intermittent leave taken to make sure they are accounted for against the employee's FMLA allotment.
- Run other leave concurrently with FMLA (paid leave, sick time, etc.).
- Develop and follow consistent procedures and practices for managing and scheduling leave.
- Transfer the employee to another position in which they are qualified that better accommodates the employee's needs. This action must not be punitive or retaliate against the employee.
3. Verify and request recertification.
Employers have many opportunities to obtain recertification for FMLA leave, and should take advantage of these opportunities to recertify intermittent leave. Employees can be asked to recertify FMLA leave…
- No more than every thirty days in connection with leave or no more frequently than the duration of the prior certification (whichever is longer)
- Every six months regardless of the duration of the prior certification
- When the leave changes in terms of the duration or frequency of absences
- When the nature of severity of medical condition changes significantly
For example, if an employee has migraine headaches and his or her medical certification states that they need leave for one or two days, but their migraines last longer than this duration typically, an employer may be able to request recertification.
Additionally, when an employee's use of FMLA follows a suspicious pattern or if you receive information (such as from another employee) that may cause you to question an employee's stated reason for their absence or the certification's validity, you can verify that the pattern in which the employee is taking FMLA is consistent with his or her serious medical condition. Such information could be an employee engaging in activities that are inconsistent with diagnoses provided by their health care provider. Employers can also contact absent employees periodically to verify that they are recovering.
Intermittent FMLA leave is especially common for chronic medical conditions, psychological or mental conditions (i.e. depression, anxiety disorders, etc.), and conditions that sometimes result in incapacity (i.e. asthma, migraines, etc.).
While there’s no question that intermittent FMLA leave poses challenges, these tactics help employers navigate these types of medical conditions a bit better to reduce strain on their businesses.