Human Resources News & Insights

11 essentials for your FMLA policy

Intermittent leave has rapidly become the No. 1 headache for HR/Benefits pros everywhere. But adding these measures to your FMLA policy will certainly ease the pain. 

You can’t forbid people from taking a few hours off here and there for legitimate FMLA reasons, but you can legally discourage abuse.

An effective policy would include at least 11 procedures, according to Attorney George Yund of the Frost Brown Todd law firm who spoke at the 2012 Labor & Employment-law Advanced Practices (LEAP) symposium in Las Vegas.

  1. Ask for notice: Always insist employees provide the required notice once they learn of the need for leave. Then make sure your supervisors designate it as FMLA leave and let employees know when they start burning their FMLA allotment. You can require 30 days of advance notice for “foreseeable” leave, or as much notice as “practicable.”
  2. Stop pay: FMLA leave is always unpaid. Even for exempt employees, you can make deductions from their wages for a few hours of intermittent leave without automatically converting them to overtime-eligible non-exempt employees.
  3. Ensure eligibility: Make sure employees requesting such leave are eligible to take it. They must work at a location within 75 miles of a worksite with at least 50 employees. Plus, they must have been employed at your company for a minimum of a year and worked at least 1,250 hours in the last 12 months. If not, they’re not eligible and requests can be denied.
  4. Deny parental leave: Even though intermittent leave is FMLA leave, you can deny it for parental care. No intermittent leave is available for childbirth or adoption purposes.
  5. Require medical certification: Leave must be medically necessary. You can insist on medical certifications and ask about specific reasons for leave, its duration and dates of treatment — both from the healthcare provider and the employee. Attach a job description to the medical certification form. And you can request second and third opinions if you have doubts — a tactic underused by employers that can send an effective message to others.
  6. Consider transfers: You can transfer employees to other positions if intermittent leave is too disruptive to their normal work.
  7. Count overtime: You can count overtime missed in calculating the total 12-week allotment.
  8. Count it all: You can count increments used for other leave in totaling leave used, using increments of up to one hour. You can use longer increments if the employee can’t join the job in the middle of a shift (e.g., flight attendants).
  9. Offer paid leave: Employees can use accrued paid time off while on leave, but you must offer the option of unpaid intermittent leave.
  10. Make them use paid time first: You can compel the use of paid leave first, so employees have to burn vacation before any unpaid FMLA leave.
  11. Count holidays: You can count any holidays falling within any leave taken toward employees’ total 12-week FMLA allotment.
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  • Shoozy

    #6 concerns me — I’ve always thought that you couldn’t transfer an employee or do anything that affects their job or benefits if they have an approved intermittent FMLA. Does anyone have any experience with this?

  • LH

    No intermittent leave is available for childbirth or adoption purposes? We have always allowed employees time off to help assist with a family member for childbirth. Often times an intermittent leave is needed for the other parent if their job is too demanding to take off a period of time.

    You can count overtime missed in calculating the total 12-week allotment. You are not going to win anyone over on this policy.

  • shell

    Shoozy, it depends on the state you are in. In Oregon, we cannot move an employee to a different position unless they voluntarily (without coercion) want to move them to a different position.

    LH: Regs have always stated parental leave is continuous and only intemittent if the employer is able/agreeable to do so. You are not required to offer intermittent bonding (unless it is for adoption/fosterplacement then you must allow intermittent time under FMLA that is required to effect the adoption/foster placement). So…you MUST provide full 12 weeks but CAN allow it to be intermittent if it works for employer and employee (excluding adoption/fosterplacement info listed above).

    Mandatory overtime (not voluntary) can be counted towards the 12 week entitlement. However, make sure you calculated their 12 weeks correctly (40 hour week EE = 480 hours, but if the employee frequently has to work 5 more hours each week in mandatory overtime, then they get the equivalent of 45 hrs week x 12 weeks=540 hours). The regulations have specific examples of this.

  • Brian

    Shoozy, we are in Ohio and I have been dealing with the intermittent issue here since January of this year. At first we wanted to try a lateral transfer to better accomodate the intermittent nature of the leave. I spoke with counsel about this and was told we can not do anything until the 12 weeks of FMLA are exhusted.