Dealing with the scheduling headaches that can be caused by employees taking intermittent FMLA leave can be a challenge. In fact, dissatisfaction over the use (some would say abuse) of intermittent leave was identified as the “single most serious area of friction between employers and employees seeking to use FMLA leave,” according to a recent Department of Labor report.
What can an employer do to minimize the disruption and reduce abuse?
Intermittent FMLA Leave: How to Minimize Schedule Disruptions
Let’s look at a familiar scenario: an employer has an employee who has been diagnosed with migraine headaches which flare up in an unpredictable manner. Assuming that FMLA applies and that the employee is eligible, how can the employer decrease the impact on last-minute scheduling problems?
The FMLA says that the employee must make reasonable effort to schedule their time off to minimize operational disruption for planned medical appointments or treatment. However, this language only addresses planned appointments and treatment—which isn’t helpful in scenarios like the one above. That said, there are some things that the employer can do to address some of the issues:
- Analyze whether there is a pattern to the times the employee calls out of work. Do they coincide with 3-day weekends or days before or after the employee is on vacation, for example? Employers may address call-ins that seem to always occur before/after holidays, vacations, and other problematic patterns. It’s helpful to know in advance how these will be handled—consider spelling it out in your attendance policy.
- Verify that each absence is covered by the FMLA. Set up a standard process to ensure all absences are properly counted and medical certification is obtained or revalidated when necessary and when allowed by law (the medical certification process for FMLA absences is outlined in the law). Be sure front-line managers have baseline knowledge of how FMLA works.
- Set up reasonable advance notice call-in requirements for all employees. This may depend on the type of work being performed—it’s permissible to have different requirements for different departments. Whatever policy is set, however, should be consistently applied for all employees, not just employees who take FMLA leave.
Intermittent FMLA Leave: Can Employers Minimize Schedule Disruptions by Transferring the Employee?
Looking back at our scenario with an employee who needs intermittent FMLA leave for unpredictable migraine headaches: could the employer transfer the employee to a different role or different department?
“Strictly in terms of a job transfer: FMLA covers this, but it’s limiting it again to a planned medical treatment or some type of foreseeable absence.” Mary Topliff explained in a recent BLR webinar. “But if that is the case – if the employee has some ongoing treatment, ongoing absences on an intermittent basis – then the FMLA allows you to transfer the person to a different position that’s equivalent. Obviously the employee would need to be qualified for this other position and you’d need to be able to make the case that there’s a reason why where doing this: that it better accommodates the schedule and our needs.”
In our scenario this option would not apply, but it could apply to other scenarios employers face every day. If an employer does transfer an employee temporarily to an equivalent alternative position that better accommodates the intermittent schedule, the transfer must also comply with ADA requirements, collective bargaining requirements, and also must have an equivalent rate of pay and benefits. The employer must also transfer the employee back to their original job if/when the intermittent FMLA leave ends.
For more information on minimizing the disruption caused by intermittent FMLA leave, order the webinar recording of “FMLA Intermittent Leave: HR’s Guide to Overcoming Compliance Challenges.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Mary Topliff, Esq., founded the Law Offices of Mary L. Topliff in San Francisco, specializing in employment law counseling, training, and compliance, while focusing on practical solutions to avoid costly legal issues. Topliff is also a published author and frequent speaker on legal issues impacting the workplace.