Like the FMLA law itself, the intermittent leave clauses were created with good intentions, and for the most part it is utilized appropriately. However, intermittent leave does leave the door open for the possibility of exploitation. In this post we’ll examine the intermittent leave process and what employers can do limit the likelihood of intermittent leave abuse.
There's another type of "Family Medical Leave"...
First things first, what is intermittent FMLA? The primary function (although not exclusively) of the Family Medical Leave Act is to serve as an unpaid job protection law for those who need to miss work due to a serious medical condition for themselves, or to care for a spouse/child/parent who has a serious medical condition. Normally FMLA leave is designated for a single, continuous time period when an employee misses 3 or more days from work. The employee must get documentation from their or their family member’s medical provider that confirms that they meet the requirements of what FMLA deems a “serious medical condition.” The process for intermittent leave approval is essentially the same, but instead of the participant missing a continuous span of time, intermittent leave allows for an employee to miss work on a discontinuous basis – a day here, a day there – for an ongoing medical condition.
Separate Your Approval Process.
One common mistake that employers and third-party administrators make is using the same medical certification form for both normal leave and intermittent leave, with no distinct section for intermittent approval. Typically the problem that arises in this scenario is the medical certification form will ask the medical provider to provide a time frame for how long the medical condition of their patient will, or should have, disabled them from work. For an employee requesting intermittent leave though, using a medical form that is void of an “if applicable” intermittent section potentially digresses the leave process to either approved or not approved. It’s when intermittent leave is simply approved outright, without guidelines or structure, that employers see the biggest risk of intermittent leave exploitation. It should also be mentioned that intermittent leave isn’t just for doctors’ visits, so requesting a doctor’s note for leave absences isn’t a requirement. Thus approving intermittent leave outright essentially entitles the employee to free reign; taking as many absences from work as they wish, citing intermittent leave with little to no legal grounds for recourse.
That’s why it’s important for the medical certification form designates a section that asks the medical provider to give an educated guess, given the medical condition, on about how much time that employee might need to miss. For example, one to three absences every two months, or 10 absences annually, or whatever the case may be. The intermittent leave can then be approved within the confines of the provider’s recommendation. If the employee does start missing more time then what they were approved for, the employer can then request an updated medical certification validating the increase of absences.
In addition to simply tracking intermittent absences, employers should also be on the lookout for emerging patterns, such as taking leave before or after weekends; it’s not always the number of days taken that can be considered abuse, but instead the timing in which those days are taken.
Another misconception that occurs when employers aren’t well versed on FMLA is they make the assumption that a person who approved on intermittent leave can therefore miss 3 or more consecutive days and have those days simply count against their approved intermittent leave. That is not the case. For someone who is on approved intermittent leave, if they miss 3 or more consecutive days, even if it’s for the same medical condition they were approved intermittently for, that would still be considered a separate continuous leave where the full FMLA process must be administered for approval. Another related misconception is absences occurring immediately before and after unscheduled days off and those not being recognized as continuous leaves – but they are. For example, an intermittent approved employee who has the weekends off, if they miss Friday citing intermittent LOA and then they also miss Monday citing the same, while technically they only missed two days of work, that is still considered a continuous leave and a new medical certification is needed for approval.
What to do if there's intermittent leave abuse in your own organization...
As previously mentioned, intermittent leave was created with good intentions but that doesn’t mean it can’t be taken advantage of, because it can and it frequently is. As discussed, the proper medical certification form is a must. If the returned medical documentation is thoroughly examined and verified, but still seems suspicious, the employer can request or pay for a second opinion. Intermittent leave should never be blindly or open-endedly approved. Once leave is approved, it’s important that managers be properly educated on the terms of the approval and what they need to do to accurately track absences and what to look for in order to curb leave exploitation. There’s plenty of valid needs for intermittent LOA but if it isn’t properly administered it can set a precedent that can lead to a cancerous problem within an organization. If you suspect LOA abuse in your organization, you should consult with your TPA, HR Department, or the Department of Labor to see what can be done to avoid it from continuing and to prevent it from happening again.
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