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You can insist on complete Labor Dept. FMLA form

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Intermittent leave is one of the trickiest areas of the FMLA. While employees with chronic health conditions may need short periods of time off when their conditions flare up, employers also know FMLA intermittent leave is prone to abuse. Some employees use it to take a day off whenever the mood strikes.

That’s why it’s important to immediately nail down the expected frequency and duration of intermittent leave. You can insist on a medical provider’s estimate of how often the employee will need time off. You also can wait until the provider gives you that estimate to approve intermittent leave.

Recent case: Michael Tome, who works for Harley-Davidson in York, has a bad back. He asked for intermittent leave. The HR office told him to have his doctor fill out the official Labor Department certification form.

Tome’s doctor did, but he left blank the space provided to fill in the expected frequency and duration of any periods when Tome would need leave.

Finally, the doctor estimated the frequency at “twelve episodes of incapacity over a six month period.” Although Harley-Davidson then approved intermittent leave, Tome sued, claiming the delay interfered with his FMLA rights.

The court disagreed. It said the employer was entitled to complete information before it considered the request for intermittent leave. (Tome v. Harley-Davidson, No. 1:CV-06-2155, MD PA, 2007)

Advice: You can use the U.S. Labor Department’s official certification form (download it at www.dol.gov/esa/regs/compliance/whd/fmla/wh380.pdf). Then review the form to make sure it’s complete before you approve intermittent leave.

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