Saying that intermittent FMLA leave is a tricky area for HR pros is an understatement.
For instance, what do you do when a doctor certifies that a staff member will need intermittent FMLA leave but doesn’t specify the duration or frequency of the worker’s illness?
Or what if you suspect FMLA abuse? Can you ask the employee to get recertified – and if so, how soon after the he she got the initial certification?
Here are four steps to make sure you stay on the right side of the law when approving, denying and overseeing intermittent leave, courtesy of Mark Toth on The ManpowerGroup Employment Blawg.
Step 1: Notify the employee
On FMLA certification forms, a doctor should provide the following:
- the duration and severity of an employee’s illness
- when the staffer may need intermittent leave, and
- the effects the illness will have on the employee’s job duties.
If you find that an employee’s documentation is incomplete, notify the worker about what information is missing.
In general, you must allow the staffer seven calendar days to get the incomplete certification fixed. In rare circumstances where that request may be unreasonable, you may be required to allow for more time.
Remember: The company approves or denies FMLA leave, not an employee’s doctor. You can legally deny an employee leave if they don’t provide you with all the necessary information.
Step 2: Contact the healthcare provider
You may still have questions about an employee’s certification once he or she has provided complete documentation.
If that’s the case, you can then reach out to the employee’s healthcare provider for clarification on the leave.
Note: The only person who should ever contact a staffer’s provider is someone in HR – never a worker’s supervisor – in order to ensure that all HIPAA rules are followed.
Step 3: Ask for recertification or get a second opinion
If you think an employee may be abusing his or her certified intermittent leave, you have two options.
One, you can ask the employee to get a second opinion, at your expense.
The worker is still entitled to FMLA leave during the time required to get the second opinion.
If the second opinion says that FMLA leave isn’t needed, the leave shouldn’t be designated as FMLA leave.
Instead, it can be treated as unpaid or paid leave, depending on your company’s policies.
Another option: You can ask the employee to get recertified.
In general, this request for recertification must come after 30 days have passed from the initial certification, though there are some rare exceptions.
Keep in mind that if you do ask for recertification, you can then no longer get a second or third opinion.
Step 4: Get a third opinion
If you find that the first and second opinions conflict, you can then ask the staff member to get certification from a third healthcare provider, also at your expense.
Whatever the third opinion is, it’s binding and final.