Dear HR Executive,
FMLA reform is in the air -- the Department of Labor just issued its long-awaited revisions to the FMLA regs.
And there are some helpful changes in there for employers -- like obliging employees to follow your usual call-in procedures to report an absence, and allowing you to contact an employee’s health care provider for the sole purpose of clarifying a medical certification.
But the new regs don't provide much relief from employers' biggest FMLA bugaboo -- intermittent FMLA leave, especially for unforeseen reasons. You know, where the employee gets certified with a condition like migraine headaches or asthma, and has a right to take four hours off here, eight hours off there, giving you little if any advance warning.
There are, however, some things you can do to minimize the pain of intermittent FMLA leave. The article summarizes them. We hope you find it useful.
FMLA intermittent leave: Six tough questions
Got a headache? If you’re like many HR managers, the cause could be yet another FMLA intermittent-leave request.
Whether it’s deciding how to handle chronic migraines or docking pay for exempt workers, many HR managers are left scratching their heads. To provide some relief, we posed the toughest questions we’ve received to FMLA-law expert Steve Teplinsky, a partner in the Chicago-based law firm of Michael Best Friedrich.
Should we allow intermittent leave for migraine headaches? Yes. While, chronic migraines are debilitating, they’re also near the top of the list of intermittent-leave abuse. The key to abuse-prevention: Remember that your company approves the intermittent-leave certification, not the doctor, Teplinsky said. Get good, detailed info. Don’t let the doctor get by with checking off the cryptic boxes on the DOL Internet form: “no duration,” “intermittent,” and “as needed.” Instead, ask for details on the severity, the duration of the illness, the limitations, the effects on the job, and when leave will be needed. Then you can evaluate if people can work, how much, and when they can’t. These details will help you weed out abusers. Note: You can ask for recertifications every 30 days at the employee’s expense, and even more often if medical circumstances change or you have a good reason to suspect abuse. Good reasons would include a pattern of taking leave on Fridays and Mondays. Be wary of singling people out, however: That can look like retaliation. The key is to have a policy that’s consistently enforced. Can we dock the pay of an exempt worker? Yes. Just as you’d dock the pay if they took FMLA leave, you can dock pay for intermittent leave, too. Just remember that the leave doesn’t affect someone’s exempt status. You may also change how you calculate certain benefits, such as accruing vacation time at a reduced rate. You may not touch medical insurance benefits, however. Can we ask exempt workers to surrender vacation time? If your company has a policy that someone must first use up all paid time off before using FMLA intermittent leave, then HR may require workers to surrender vacation time first. If you don’t have such a policy, then under the FMLA it’s up to the employee how to count the time. If workers come back early, how do we count the time? Say a worker asks for three hours of intermittent leave, but only takes two and comes back an hour early. Can you count all three hours as leave? No, you can’t require someone to take more FMLA leave time than they need. Teplinsky also says as a practical matter, it’s probably not a good idea to discourage workers from returning to work early. Is a doctor’s care required? Yes. Here is a “tough-luck” scenario that illustrates the point. Two parents stay home with sick children. One child has a cold. The other child has an ear infection and is taking prescribed medicine. The first parent is ineligible for FMLA leave and the second one is eligible. Reason: The second child is under a doctor’s care. What happens if we don’t ask for recertifications? Your problems could snowball. Case in point: HR managers at a Chicago business found 250 of 500 dock workers had certifications for intermittent leave, mostly for hard-to-disprove conditions: chronic migraines, back pain and soft-tissue injuries. Not only was the number of workers suspiciously high, but the certifications came from two doctors. The calendar told a story, too: Scheduling was a nightmare on Fridays, Mondays, and before or after holidays. HR saw the problem as temptation. By approving so many intermittent-leave requests and not managing the certifications closely, HR had sent the wrong message. The solution: Recertifications every 30 days. The union had to pay for the certifications, and the doctor’s bills took their toll. Most requests stopped, except for the few with legitimate medical issues.
Dave Clemens
Editor-in-Chief
Source: Teplinsky, www.michaelbest.com
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I do not have a comment, but I have a question,if there is anyone out there who could provide me with an answer I would appreciate it.
If an employee exhausts his/her 12 weeks of FMLA, how soon after returning to work are they eligible for another 12 weeks of FMLA leave? We count leave on a "rolling year" 365 days after the first day out on leave.
I would appreciate any answers I ger or directions to the Federal site where I can find an answer.
Thanks.
Posted by: Donna Ferdinand | February 13, 2009 at 03:20 PM