TheAct of 1993 ( ) entitles eligible employees to take up to 12 weeks per year of unpaid leave from work for their own “serious health condition” or to care for an immediate family member with a serious health condition. Leave is also available for childbirth or adoption.
Employers with 50 or more employees within a 75-mile radius must offer FMLA to their eligible workers.
Employees don’t have to take those 12 weeks of leave all at once. They can—and typically do—take small chunks offor a single, qualifying reason. Employees often use it while recuperating or when suffering from chronic conditions.
The U.S. Labor Department, the agency that administers the FMLA, recently collected 15,000 public comments on the law’s effectiveness. A top employer complaint: productivity problems caused by employee use (and abuse) of intermittent leave.
Chronic-ailment sufferers can take leave with little or no notice when their conditions suddenly worsen. But some employees claim chronic condition flare-ups when they just want a day off.
How to comply
Managing FMLA intermittent leave can be vexing, but the law does give employers some tools to combat abuse.
As with FMLA leave taken in one block, employees requesting intermittent leave must provide notice. Employees are supposed to give at least 30 days’ notice when their need for FMLA leave is foreseeable. When it’s not, they must notify you “as soon as practicable.”
Here’s how to manage other common intermittent leave problems:
Certify and schedule the leave
Don’t accept FMLA requests at face value. The law gives you the right to demand certification from the employee’s doctor of the employee’s need for FMLA leave. You can request new medical certification from the employee at the start of each FMLA year. The law also entitles you to ask for a second or third opinion, if necessary, before granting FMLA leave.
When employees have chronic conditions and their certifications call for intermittent leave, you should attempt to work out leave schedules as far in advance as possible. It’s legal to try to schedule FMLA-related absences, but you can’t deny them.
Monitor employees on leave
Sometimes, FMLA leaves just don’t “feel right.” Maybe it’s a Monday/Friday pattern or some other conspicuous reason.
Courts consistently have upheld employers’ rights to monitor employees on FMLA leave. Similar to workers’ comp cases, employers that believe employees are abusing their FMLA leave can call and check to make sure sick employees are resting at home. Or, you can require the employees to contact you when they leave their homes during sick leave.
Employees who are found to be abusing leave can be disciplined in accordance with company policies.
Tracking is an important component of managing intermittent leave. Employers may count leave in the smallest unit that their time-tracking system allows for hourly employees. For, leave can be taken in increments as small as one-half day. allow employers to reduce pay for unpaid leave without destroying the employee’s Fair Labor Standards Act exemption.
Whatever time measurement is used, it is still a fractional portion of a day. Employers are responsible for keeping track of the total amount of leave used. Inform employees of the amount of leave they have available at the start of each leave period.
Don’t automatically terminate employees just after they use up their entire 12 weeks of FMLA leave. First consider if the employee may be considered “disabled” under the ADA. That may entitle the employee to more time off as an ADA “reasonable accommodation.” This is often the case when just a short additional time frame is necessary for recuperation.
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