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Public Comments Focus On Difficulties With Unscheduled Intermittent FMLA Leave

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The Department of Labor (DOL) asked, and it received. Back in December, the DOL asked for public comments on the Family and Medical Leave Act (FMLA) regulations and their impact on the workplace; it received over 15,000 comments. In June, the agency released a comprehensive review of the comments in Family And Medical Leave Act Regulations: A Report On The Department Of Labor's Request For Information. Not surprisingly, unscheduled intermittent leave is the "single most serious area of friction between employers and workers," particularly when it is needed for chronic health conditions. Judging from the report, you are certainly not alone in your frustration in trying to maintain staffing levels and control attendance problems in light of unscheduled intermittent leave.


While the DOL wrote that it is "cognizant" that some of its regulatory decisions and interpretations may have contributed to the situation, the report does not propose any changes. Its purpose is to lead to "fuller discussion" about how the FMLA has played out in the workplace. Employers were vocal about:

  • how hard it is to determine or monitor employees' incapacity when a chronic condition does not involve any active, direct treatment or care by a health care provider;

  • how frustrating it is that employees can seem to avoid promptly alerting them of their need to take unscheduled leave in situations when it is practicable for them to do so;

  • how they can't verify that an unscheduled absence is, in fact, caused by a chronic serious health condition, or can't seek additional medical verification.

The DOL commented that many employers used the words "abuse" and "misuse" to describe employee use of intermittent leave. But the agency cautioned that it couldn't tell from the record how much leave taking was actual abuse and how much was legitimate. It seemed to the DOL that unscheduled intermittent leave has caused a "backlash" by employers trying to reduce absenteeism (e.g., repeatedly asking for more information in medical certifications). Don't fall into the trap of clamping down so hard on absent employees that you inadvertently violate the FMLA.


Remember, you can't ask for certification every time an employee claims an absence was due to an FMLA-covered chronic condition. You can ask for more certification if you have a reasonable suspicion of abuse.


And you can ask the doctor to certify whether the employee's absence pattern fits with the condition. Beware: Health care providers commented to the DOL about the difficulty they have in predicting the number of times a condition will flare up.

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