Intermittent FMLA leave has rapidly become the No. 1 nightmare for supervisors everywhere. A top employment lawyer offers a multi-step approach that’ll help companies legally discourage abuse.
It starts with adopting a formal policy on intermittent leave, making a company-wide decision that you’ll track all such leaves and communicating the policy throughout the company to all employees and supervisors, according to George Yund of the Frost Brown Todd law firm in Cincinnati.
Yund spoke at the recent Labor & Employment-law Advanced Practices (LEAP) symposium in Las Vegas.
An effective intermittent leave policy would include at least 13 measures, Yund says.
Here’s a rundown:
- Notice: Always insist employees provide the required notice once they learn of the need for leave, and coordinate with supervisors that such leave be designated as FMLA leave to make sure that employees start burning their FMLA allotment – nothing goes uncounted. You can require 30 days’ advance notice for “foreseeable” leave, or as much notice as “practicable.”
- Dock their pay: FMLA leave is always unpaid, and even for exempt employees, you can make deductions from their wages for a few hours’ intermittent leave without automatically converting them to overtime-eligible non-exempt employees.
- Ensure eligibility: Make sure employees requesting such leave are eligible to take it. They must be within 75 miles of a worksite with at least 50 employees.
- Don’t give it prematurely: Make sure employees have gained at least a year’s seniority with your company, and that they have worked at least 1,250 hours during the previous 12 months. If not, they’re not eligible and requests can be denied.
- 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.
- Require medical certification: Leave must be medically necessary. You can insist on medical certifications, and annual recertifications if needed, and ask about specific reasons for leave, its duration and dates of treatment, both from the healthcare provider (HCP) 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 under-used by employers that can send an effective message to others. To avoid disparate treatment charges, ask for medical certifications in all cases, but that doesn’t go for second and third opinions.
- Transfers: You can transfer employees to other (more undesirable?) work if intermittent leave is too disruptive in their normal positions.
- Count overtime: You can count overtime missed in calculating the total 12-week allotment (and pro-rate it for part-timers).
- Count it all: You can use increments used for other leave in totaling leave used, up to one-hour increments.
- Use longer increments: You can use longer increments if the employee can’t join the job in middle of shift (e.g., flight attendants).
- Offer paid leave: You can provide paid leave for longer increments (so they’ll start burning those entitlements), but you must offer the option of unpaid intermittent leave.
- Count the holidays: You can count any holidays falling within any leave taken toward employees’ total 12-week FMLA allotment, to make sure they reach the limit sooner, and
- Make ’em use paid time first: You can compel the use of paid leave first, so employees have to burn vacation before any unpaid FMLA leave.