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FMLA leave: Intermittent or all at once? Document what employee requested

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in FMLA Guidelines,Human Resources

Employees who are eligible for FMLA leave may not need a big block of time off, but instead want to take intermittent leave. But that can be more difficult for employers to manage.

For example, an employee who needs a few hours off per week to take her ailing parent to doctors’ appointments can mean having to adjust other employees’ schedules to accommodate those absences. A block of time off may be much easier to manage.

Unfortunately, it isn’t up to the employer whether the employee takes a block of time or intermittent leave. If the medical certification calls for intermittent leave, that’s the employee’s choice. Forcing her onto block leave may constitute interference with FMLA leave.

That’s why it is crucial for you to document exactly what the employee requested. If you place her on block leave, make sure that’s what her certification calls for.

Recent case: Rochelle worked as a health service manager for a provider of residential, educational, therapeutic and recreational services for developmentally disabled children and adults.

Shortly after she first became eligible for FMLA leave, she asked for intermittent leave to care for her father. He had suffered a massive stroke and was in a rehabilitation and nursing facility. Rochelle got a medical certification from her father’s health care provider that called for Rochelle to take intermittent FMLA leave to help her mother care for her father and to visit him in the facility.

After a few weeks of disrupted schedules, management notified Rochelle that it wanted her to take her FMLA leave in a block of time. Later, the employer would claim that Rochelle herself told them that this is what she wanted and that she needed the time off for her own problems.

Rochelle sued, alleging that her employer forced her to take block FMLA leave when she really wanted intermittent leave. She denied asking for block leave.

However—if Rochelle had indeed requested block leave—the employer missed a crucial step. It never put together a new FMLA request or asked for a new certification.

Since the only written evidence was the first certification that requested intermittent leave, the court said the case should go to a jury. It will decide whether the employer forced Rochelle to take block leave or whether she actually requested it. (Bracy v. Melmark, et al., No. 12-3323, ED PA, 2013)

Final note: Don’t get sloppy with the FMLA. Carefully document every FMLA leave request.

First, determine whether the em­­ployee is eligible (based on years and hours of service) and the underlying reason for leave. Then determine what type of leave the employee wants: intermittent or block. Don’t forget to get medical certifications if necessary.

Also don’t forget that FMLA leave options have been recently expanded to include time off for military-related reasons and that the definition of caretakers has expanded to include employees who care for unrelated children for whom they may not have a legal obligation to support.

Advice: Regularly review the DOL Web pages on FMLA leave. Try these two sites:

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{ 1 commentsῂ read them below or add one }

Tami Gomez March 6, 2014 at 12:19 am

I was terminated and documented in termination papers from Southwest Airlines for using my FMLA intermittent hours in conjunction with my days offs, which was rare if the case, as well as exceeding their 18 hours absent maximum per quarter metric. Do I have any rights to fight this because they documented using FMLA basically as what they think was abusive? Thank you

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