FMLA Intermittent Leave

Dear HR Subscriber:

Since we're conducting an audio conference today about FMLA mistakes even smart HR executives make, I thought it would be useful to share an interesting -- and pretty tough -- question about FMLA intermittent leave posed by a subscriber to our newsletter Human Resources 21.

We've all heard that one of our best weapons to fight intermittent leave abuse is asking that employees get medical certification every 30 days. This tactic works because only those who really need intermittent leave will likely go through the trouble of recertifying.

But here's the subscriber's question:

If you ask one employee who's taking intermittent FMLA leave to recertify, don't you have to ask them all?

The answer is yes. If you don't, you've left yourself wide open to a discrimination lawsuit. Imagine yourself in court facing a hostile attorney who says, "You required my client, who's a member of a protected class, to go through the hassle of recertification. But you didn't require it of several other employees who aren't in protected classes. Please explain why you did that?"

There is no good answer to that question.

What you should do: State in your FMLA policy that all employees who take intermittent leave MUST renew their medical certifications every 30 days.

But that's not enough: You have to make sure you actually get those recertifications. Again, if you have a policy and enforce it inconsistently, you've left yourself wide open for a discrimination lawsuit.

Stephen Meyer
B21 Publisher

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Comments

[Lilia Franciscony]

Can an employee refuse to take FMLA and instead use PTO, even when reason for absence qualifies under FMLA?