FMLA Intermittent Leave

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Dear HR Executive,

FMLA Intermittent Leave is a hot topic, and it's tough to figure out how to handle these leave requests. Here are 10 "burning questions" on FMLA Intermittent Leave answered by Steve Teplinsky, a partner at Michael, Best & Friedrich in Chicago and an expert in employment litigation. This Q&A covers topics like certification, workers' comp, and what to do when you suspect abuse. We hope you find it helpful.

Steve Meyer
B21 Publisher

10 Burning Questions on FMLA Intermittent Leave

1. Q – If an injured employee is on half-day duty as the result of a workers’ comp injury, can we charge the missed time against his or her FMLA entitlement as we would for intermittent leave?
    
   A – Absolutely. It’s perfectly appropriate, if the employee does have a serious health condition, which is likely in a workers’ comp case. One caution: Even if the employee uses up 12 weeks of FMLA leave and thus is no longer protected by the FMLA, it’s unwise to fire the person. You’d be laying yourself open for a workers’ comp retaliation suit.
    
2. Q – If we suspect an employee is abusing intermittent FMLA leave, can we have the person placed under private surveillance to check what he or she is doing when supposedly incapacitated?
    
   A – You can. Many court cases have been decided based mainly or in part on video evidence of an employee’s malingering. The recent Crouch v. Whirlpool case in Illinois involved this kind of situation, and the employer won. The employee was videotaped doing yard work, and boarding a plane for Las Vegas, when he was supposedly incapacitated.
    
3. Q – What’s the purpose of asking an employee who’s been taking intermittent FMLA leave to get recertification from his or her doctor?
    
   A – To remain in control of the process. You don’t just have to accept that a person on intermittent leave will be entitled to it for as long as they want, or until the full 12-week annual period is up. Remember, you the employer make the final decision whether to approve the leave or not.
    
4. Q – How often can we require recertification of an employee’s intermittent leave?
    
   A – Under normal circumstances, you can ask every 30 days. But if you have good reason to disbelieve the employee’s account – such as surveillance reports – or if the employee’s medical condition has significantly changed, you can ask more often.
    
5. Q – Who pays for the recertification?
    
   A – If the doctor requires payment for a certification or recertification, and doctors sometimes do, the employee must pay. The employer is under no obligation to do so.
    
6. Q – How about second opinions? Who pays for them in cases of intermittent FMLA leave?
    
   A – In all FMLA cases, not just intermittent leave cases, the employer has to pay for a second opinion if it wants one. Note that a second opinion, unlike recertification, doesn’t come from the employee’s doctor. The employer chooses the physician for the second opinion, but he or she can’t be a doctor you use regularly for, say, workers’ comp claims.
    
7. Q – Is there some way we can put discreet influence on an employee’s doctor to look harder at the person’s FMLA intermittent leave recertification?
    
   A – Certainly. Suppose an employee claims to have been absent for medical treatment. If you send the employee back for recertification, you can include his or her attendance report, and if applicable his or her FMLA treatment record, in the recertification paperwork. You also send a letter asking the doctor doing the new certification to consider whether the absences on the attendance report are consistent with the employee’s health condition. Give the employee copies of these materials. This may embarrass the employee, and it may influence the doctor. If the records you’ve kept show unexplained absences, or absences for treatment when the doctor knows there was none, the doctor may well be more forthright about the recertification than the certification.
    
8. Q – We have just one worker whom we suspect of abusing intermittent FMLA leave, and four or five more who are on the level. Can we send an attendance report only to the first employee’s doctor?
    
   A – No, that would look discriminatory. If you’re going to use the attendance report idea, you should send the report each time you ask anybody for a recertification of intermittent FMLA leave.
    
9. Q – What do we do if we think an FMLA intermittent leave certification or recertification form has been forged?
    
   A – Deliver the form to the doctor and ask ‘Is that your signature?’ In the rare situations where certification have been forged, the doctors are not happy. Such an act forms the basis of a termination.
    
10. Q – One of our employees has a parent who’s a full-time resident of a nursing home. Do we have to approve intermittent FMLA leave for the employee to care for his parent?
     
    A – Yes. Just because the parent is in a nursing home and is presumably having his or her needs met by professional caregivers doesn’t mean the employee isn’t entitled to this leave. The law recognizes the idea of “psychological comfort.” This means that if a doctor certifies that an employee’s reassuring presence is needed for a parent with a serious medical condition, the employee is entitled to the intermittent leave. You should try to work with the employee to schedule his or her leave so as to disrupt your operations as little as possible.

Comments

[Reba]

I need help with this one asap

we have an employee that has certifications for both parents, there seems to be a pattern of taking intermitted on either last working day or 1st working day of his week. We don't question the validity of his parents it that we think he's abusing. How should it be worded in requesting recertification when it's for a family member, I can't find anything

[joey]

The company that I work for is calling me on going over the duration and frequency, I went over by one day ! As I understand this is a estimate by the medical specialty.What
do you think.

[Cynthia]

Can a person be out one day per year with a child with say Asthma, and have it considered FML -intermittent? - their FML papers are over a year old...

[Raymond Isbill]

Q – If an injured employee is on half-day duty as the result of a workers’ comp injury, can we charge the missed time against his or her FMLA entitlement as we would for intermittent leave?

I say absolutley not. If they are on workers comp how can you charge FMLA time. That is like telling them they have to use sick time. FMLA is for the employee to take care of their family not themselves especially when it is a workers comp claim.

[Cheryl]

An employee has requested Intermittent leave to report to work at 8:30 am to care for a child. She comes in at various times later than 8:30 am, some days leave at 3:45 pm and is absent some days. This is causing problem with coverage. She is a classroom teacher and her performance has been affected.

[Cliff]

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[Catherine W Biggam]

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