Intermittent and Reduced Schedule FMLA Leave - Supervisor Briefing

© Reed Business Information, a division of Reed Elsevier Inc.

Intermittent and Reduced Schedule FMLA Leave - Supervisor Briefing


Question

What are the most common challenges associated with intermittent and reduced schedule leave under the Family and Medical Leave Act (FMLA)?


Answer

Some of the more common challenges include:

• Identifying and accurately tracking leave;• Scheduling around an employee's leave;• Employee's that abuse intermittent leave and try and spread it over years, without exhausting it; • Seemingly limitless use of intermittent leave for qualifying exigencies; and• Dealing with a reduced workforce at the last minute.


Objectives of This Briefing

This Supervisor Briefing examines the law and best practices covering how a supervisor should comply with the FMLA’s requirements for administering intermittent and reduced schedule leave, including:1. The Definition of Intermittent Leave and

Reduced Schedule Leave2. Eligibility for Intermittent or Reduced

Schedule Leave


Objectives of This Briefing (con’t.)

3. Granting Intermittent or Reduced Schedule Leave4. Employer and Employee Notice Requirements5. Medical Certification Requirements


Objectives of This Briefing (con’t.)

6. Scheduling, Tracking, and Calculating Intermittent or Reduced Schedule Leave7. Reinstatement Following Intermittent or Reduced Schedule Leave8. Managing Intermittent and Reduced Schedule Leave


Definition of Intermittent and Reduced Schedule Leave

Intermittent leave:• Is FMLA leave taken in separate blocks of time rather than in one long block of time because of a single qualifying reason; and• May be taken for both planned as well as unanticipated medical treatment, such as doctor appointments or chemotherapy.


Definition of Intermittent and Reduced Schedule Leave

(con’t.)Reduced schedule FMLA:• Reduces the usual number of hours

the employee works in a workweek or in a workday; and• Changes the employee’s schedule for a period of time, usually from full-time to part-time.


Eligibility for Intermittent or Reduced Schedule Leave

Under the FMLA, an employee is eligible for intermittent and reduced schedule leave if he or she:• Has worked for the employer for at least 12 months;• Has worked at least 1,250 hours prior to the start of the FMLA leave; and• Works at a worksite that has 50 or more

employees within 75 miles.


Granting Intermittent or Reduced Schedule Leave

An eligible employee may take intermittent or reduced schedule FMLA when:• He or she has a serious health condition and there is a medical need for the leave that can best be accommodated through such a schedule;


Granting Intermittent or Reduced Schedule Leave (con’t.)

• It is medically necessary for an employee to care for a spouse, parent or child with a serious health condition or a servicemember with a serious injury or illness; or• An employee needs to take military exigency leave to deal with events arising out of a military member’s covered active duty, such as arranging childcare.


Did You Know?

• An employer is not required to grant intermittent or reduced schedule leave for an employee to bond with a new baby after birth or adoption or foster care. However, such leave is required if there are serious health conditions.

• A pregnant employee may request intermittent leave for prenatal exams or for her own condition, such as morning sickness.


Did You Know? (con’t.)

• An employee with cancer is entitled to take intermittent FMLA for radiation or chemotherapy. • An employee may take intermittent or

reduced leave when he or she is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition such as diabetes or asthma.


Employee and Employer Notice Requirements

An employee:• Must provide notice of his or her

intent to take FMLA;• Must notify the employer if dates of scheduled leave change, must be

extended, or become known later;• Only needs to give notice one time;


Employer and Employee Notice Requirements (con’t.)

• May be required to provide 30 days advance notice for planned doctor’s visits, if the employer requires such notice;• Must provide an explanation for a medical emergency if advance notice was not possible.


Employee and Employer Notice Requirements (con’t.)

If an employee mentions the need for time off to a supervisor rather than to a designated leave administrator:• The conversation may be considered sufficient to put the employer on notice of the need for FMLA leave;• The supervisor should inform the leave administrator (typically HR);• The supervisor should not discuss the leave request with other employees.



The employer:• Must provide written approval or denial of the FMLA request; • Must advise the employee that he or she may request information on the status of the FMLA entitlement, if the leave is to be taken on an unscheduled intermittent basis;



• Must give the employee notice of how much leave has been taken once every 30 days, if the employee requests a

calculation.



The supervisor should:• Never discourage or prevent an employee from taking legally-permissible FMLA leave;• Report suspicions of FMLA abuse to the employer’s designated leave administrator.


Did You Know?

An employee must reference the qualifying reason for FMLA when he or she requests the need for additional leave. Calling in sick without giving additional information is not sufficient notice to trigger FMLA-protected leave.


Medical Certification Requirements

• The employee must provide medical certification to support a request for intermittent or reduced schedule leave. This certification is a tool to help the supervisor manage the leave and curb abuse.

• If a supervisor sees that an employee is not taking leave consistent with the medical certification, he or she should immediately report this to the employer’s designated leave administrator.


Medical Certification Requirements (con’t.)

The medical certification should give information to establish:• The predicted frequency and duration of the employee’s need for leave in terms of times per week or month and hours or days per episode;• That intermittent and/or reduced leave schedule is medically necessary (except for military exigency leave); and



• The likelihood of unforeseeable episodes of incapacity or flareups and the frequency and duration of such episodes or flareups.



If a medical certification form is hard to read or understand, the supervisor should take the form to the employer’s leave administrator. The supervisor should never contact the healthcare provider directly.


Scheduling, Tracking and Calculating Intermittent or Reduced Schedule Leave

When and employee requests intermittent or reduced schedule leave for foreseeable medical treatment, the supervisor should:• Discuss with the employee why leave is needed and how to schedule it to minimize business operations;• Require the employee to stick to the agreed-upon schedule (barring an emergency);


Scheduling, Tracking and Calculating Intermittent or Reduced Schedule Leave (con’t.)

• Track patterns of intermittent leave usage (for example, patterns of using FMLA primarily on Fridays or Mondays or only before significant deadlines);• Track leave for adherence to the estimated amount;• Alert the leave administrator if abuse seems apparent.


Did You Know?

If necessary, the employer may transfer an employee temporarily to an alternative job with equivalent pay and benefits if the alternative job can accommodate recurring periods of leave better than the regular job. The alternative position does not have to have equivalent duties.


Scheduling, Tracking, and Calculating Leave (con’t.)

Only the amount of leave actually taken by an employee counts toward FMLA leave entitlement. • For an employee who takes off two days a week, 2/5 of a week counts toward FMLA leave.• For an employee who normally works an

eight-hour day and takes off four hours each day, 1/2 week counts toward FMLA leave.


Tip

If an employee’s schedule varies from week to week, the employer must calculate FMLA leave by using the average of the hours the employee was scheduled over the prior 12 months to determine a typical workweek.


Did Your Know?

• The employer may not require an employee to take more FMLA leave than necessary.

• The employer may account for FMLA leave in an increment less than the shortest period used to account for other forms of employee leave. Special rules apply for flight crew employees.


Did You Know (con’t.)

• When it is physically impossible for an employee (such as a flight attendant) using intermittent leave or on reduced leave to start or end work mid-way through a shift, the entire period the employee must be absent is counted as FMLA leave.



If an employee normally is required to work overtime but cannot because of an FMLA-qualifying reason, the hours the employee would have been scheduled may be counted against FMLA entitlement.

For example: If an employee normally works 48 hours a week but is restricted to 40 hours due to a medical condition, the employee would

utilize eight hours of FMLA-protected leave— 1/6 of a workweek.



Voluntary overtime hours that an employee does not work due to a serious health condition may not be counted against the employee’s FMLA leave entitlement.


Reinstatement Following Intermittent or Reduced Schedule

Leave

When an employee returns from intermittent or reduced schedule FMLA leave, he or she must be reinstated to the previous job or to an equivalent position.


Reinstatement Following Intermittent or Reduced Schedule

Leave (con’t.)The employer can require the employee to provide:• Notice of his or her intent to return to

work; or• A fitness-for-duty certification, if the employer has a reasonable safety concern. The certification cannot be requested more than once every 30 days.


Managing Intermittent and Reduced Schedule FMLA Leave

A supervisor should:• Make sure the employee provides medical necessity for requesting FMLAleave (except qualifying exigency leave).• Request a schedule of medical treatment when the leave is foreseeable.• Work with the employee to schedule leave to accommodate business operations whenever possible.



(con’t.)

• Require new certification if the employee’s need for leave changes.• Not allow a deviation from scheduled foreseeable intermittent leave, unless medically necessary.• Create a tracking system to track intermittent or reduced schedule leave.



(con’t.)• Obtain documentation from an employee asking for intermittent leave for military exigency.• Require periodic reports of an employee’s status and intent to return to work.• Review medical certifications to ascertain the need for intermittent leave in terms of times per week or month and hours or days per episode.



(con’t.)• Check to see if the health care provider has specified the likelihood of unforeseeable

episodes of incapacity or flare ups and the frequency and duration of such episodes.• Account for FMLA leave using an increment no greater than the shortest period of time the employer uses for other types of leave.• If required for safety, ask the employee to provide a fitness-for-duty certification.



(con’t.)• Not transfer an employee to an alternative position (such as from day shift to midnights) to discourage him or her from taking FMLA or create a hardship on the employee.• Place the employee returning from leave in the same or equivalent job.• Not require an employee to take more

leave than necessary.



(con’t.)• Increase the pay and benefits of an existing alternative position to make them equivalent to the pay and benefits of the employee’s regular job.• Transfer the employee to a part-time job with the same hourly rate of pay and benefits if an alternative position is required to accommodate FMLA leave.



(con’t.)• Count only the amount of leave actually taken toward the employee’s FMLA entitlement.• Use the actual workweek as the basis of leave entitlement.• Calculate on a pro rata basis the amount of FMLA leave taken by an employee working part-time or variable hours.


Tip

An employee who would usually work 30 hours per week but works only 20 hours a week under a reduced leave schedule, uses 1/3 of a week of FMLA leave for each week on the reduced schedule.


Test YourselfQuestion 1

Joel’s medical certification states that he must be absent intermittently for the next 45 days due to a serious health condition. After 45 days, Joel needs to continue FMLA leave for the same condition and calls in sick. Will his leave count toward FMLA entitlement?

a. Yes. His certification stands.b. No. He needs to submit a recertification.c. Yes. The employer is already on notice of his

health condition. Calling in is all Joel needs to do.


Test YourselfQuestion 1: Answer

Joel’s medical certification states that he must be absent intermittently for the next 45 days due to a serious health condition. After 45 days, Joel needs to continue FMLA leave for the same condition and calls in sick. Will his leave count toward FMLA entitlement?

a. Yes. His certification stands.b. No. He needs to submit a recertification.c. Yes. The employer is already on notice of his

health condition. Calling in is all Joel needs to do.


Test YourselfQuestion 1: Rationale

b is correct. The employer may seek recertification from Joel because the FMLA period covered by the original certification has expired. Choice a is incorrect because Joel has an obligation to notify the employer of his need to continue intermittent FMLA leave because of his serious health condition as his circumstances change. Choice c is incorrect because calling in sick is not sufficient notice to provide to the employer to entitle Joel to FMLA leave.



Acme Co. requires employees to notify their supervisors 12 hours in advance of their shifts if they will be absent. Failure to do so results in discipline. Erica has been granted intermittent FMLA leave to care for her daughter, who has asthma. One day the daughter has an asthma attack an hour before Erica’s shift. Erica takes her to the hospital, where the daughter is stabilized. Erica calls in and explains she cannot come to work because of the attack.



Which of the following statements is true?a. The daughter’s condition is under control, so

the absence does not count toward FMLA leave.

b. Erica is not allowed to take intermittent leave to care for her daughter’s condition.

c. The employer cannot discipline Erica for missing the call-in deadline because there were extenuating circumstances related to her FMLA leave.


Test YourselfQuestion 2: Answer

Which of the following statements is true?a. The daughter’s condition is under control, so

the absence does not count toward FMLA leave.

b. Erica is not allowed to take intermittent leave to care for her daughter’s condition.

c. The employer cannot discipline Erica for missing the call-in deadline because there were extenuating circumstances related to her FMLA leave.


Test YourselfQuestion 2: Rationale

c. The extenuating circumstances prevented Erica from complying with the call-in requirements. However, Erica called in as soon as it was feasible for her to do so. Choice a is incorrect because asthma, regardless of whether it is controlled at the time, is considered a chronic condition that is a serious health condition under FMLA. Choice b is incorrect because the FMLA permits eligible employees to take intermittent or reduced schedule leave to care for a family member.

Documents

Intermittent and Reduced Schedule FMLA Leave - Supervisor Briefing