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Use the calendar-year method to tame the intermittent FMLA leave beast

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in FMLA Guidelines,Human Resources,Leaders & Managers,Management Training

Employees who take intermittent leave can wreak havoc with work schedules. Because their conditions can flare up at any time, their absences are by nature unpredictable. But there are ways you can legally curtail intermittent leave.

One way is to use the calendar-year method to set FMLA leave eligibility.

Here’s how it works. Sometime during the calendar year, an employee submits medical documentation showing she will need intermittent FMLA leave for a chronic condition. If she is eligible for leave at that time (because she has worked for the company for at least one year and has worked more than 1,250 hours in the preceding 12 months), she can take up to 12 weeks of intermittent leave until the end of the calendar year.

Then the process starts again.

If, on Jan. 1, she hasn’t worked 1,250 hours in the preceding 12 months, she’s no longer eligible—and won’t be eligible again until she hits 1,250 hours.

Recent case:
Candice Davis worked for Bell Telephone and suffered from chronic depression. She had many unexcused absences and was close to termination for violating the company’s attendance policy.

By September, she reached the 1,250-hour threshold (she had already worked for the company for more than one year) and became eligible for FMLA leave.

She got her therapist to certify that she suffered from a chronic serious health condition that required intermittent leave. The phone company granted her FMLA request and she missed work periodically through the fall because of depressive episodes.

Then she didn’t return to work after taking intermittent leave at the end of December. The company terminated her for violating the attendance policy.

She sued, alleging she hadn’t used up all 12 weeks of intermittent leave.

The 6th Circuit Court of Appeals rejected her claim. It reasoned that employers that use the calendar method could start the FMLA process over at the beginning of the year. She would have had to meet the 1,250 hours eligibility requirement on Jan. 1. She didn’t because of her absences in the preceding year. (Davis v. Michigan Bell Telephone, No. 07-1512, 6th Cir., 2008)

Tip: Employees who are approved for FMLA intermittent leave can take that time off as needed. That doesn’t mean, however, that you aren’t entitled to some supporting documentation for each absence. You can ask for proof that the absence was for the chronic condition—but a simple doctor’s note to that effect should be good enough. No new formal certification is required.

Wait until the end of your FMLA leave year to get the new intermittent leave certification.

Final note: The new FMLA rules, effective Jan. 16, make clear that employees on FMLA leave must use their employers’ normal call-in procedures. For more information, visit www.theHRSpecialist.com/thenewFMLA.

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