Law360, New York (March 8, 2017, 9:07 PM EST) — While most employers have fine-tuned their practices for administering leave under the Family and Medical Leave Act, experts say the statute’s allowance for intermittent leave — shorter, less predictable absences — still often leaves employers flustered and open to legal woes.
Passed in 1993, the FMLA allows qualified employees to take 12 weeks of unpaid, job-protected leave per year for medical reasons or to care for sick family members. Once an employee’s leave period ends, that person must be returned to the same job the worker held before, or to a virtually identical position. The law also requires employers to maintain any group health benefits during a worker’s leave period.
But while most employees take their allotted time all at once or in continuous blocks for things like maternity leave or surgery, some employees have conditions that require them to stagger their time away from work.
“Intermittent leave is and has always been what gives employers trouble,” said Edward Harold, regional managing partner of Fisher Phillips LLP’s New Orleans office. “If they simply got rid of intermittent leave, most lawyers would be ecstatic.”
Melissa Zinkil, a partner in Akerman LLP’s labor and employment practice, similarly said that while continuous leave is easier to manage, intermittent leave presents far more administrative challenges for businesses.
“If employees are taking [intermittent leave] for a medical condition that flares up, employers try to manage it, but it is difficult sometimes for their operations,” Zinkil said.
Once granted, a request for intermittent leave can take any number of forms, depending on the particular needs of an employee.
Some people may work a reduced schedule or take scheduled time off because of a foreseeable medical treatment — say, for chemotherapy every Thursday. In these situations, employers can plan ahead to cover the missing employee.
But not every medical condition follows a schedule. Employees who suffer from severe asthma or migraines, for example, are allowed to take FMLA leave when their conditions flare up, often leaving employers with little to no advance notice either that an employee will miss work or when the person will come back.
“If you have someone unlucky enough to suffer from [these types of] severe conditions, they can use FMLA in each instance,” Harold said. “That means a person can miss 60 days a year on a completely unpredictable basis.”
Here, Law360 looks at three mistakes businesses make in dealing with these periodic FMLA absences.
First and foremost, when an employee makes a request for leave under the FMLA, that person must obtain a medical certification saying leave is required. Once a request is granted, the onus falls to the employer to make sure the leave is carried out correctly, a process that includes tracking the amount of time a worker takes.
When an employer doesn’t track leave time properly, Zinkil says, it may mistakenly inform an employee that he or she can take leave, and in doing so open itself up to legal claims.
“Different employers [track] it differently. I don’t think that there’s one way to tackle it,” Zinkil said, adding that employers should be sure to track any absences that could qualify as FMLA leave and whether employees have worked enough hours to qualify.
Zinkil also noted that employers are required by the statute to restore workers coming off of leave to the same job they had before they left or a substantially similar job, and that employers can’t tell workers to take more time than they need in order to suit business operations.
Indeed, she said, the two most common claims under the FMLA pertain to interference with leave and retaliation for an employee exercising his or her rights under the statute.
“It’s challenging to have a person who may only need a few hours or a few days a week for medical treatment,” Zinkil said. “You can’t force an employee to take more leave time than is required, [and] you definitely can’t force an employee to go on full leave and you can’t force someone to go part-time.”
Not Knowing an Absence Is Covered
While continuous leave periods are often associated with significant events — childbirth or major surgery, for example — intermittent absences can start out seeming much more benign.
According to Fisher Phillips’ Edward Harold, one of the biggest mistakes employers make is not doing paperwork correctly — or in some cases not doing it at all — because they are slow to recognize that a particular employee absence is actually FMLA leave.
Harold gave the example of an employee who takes off a day or two to undergo a relatively minor voluntary procedure. If a complication arises, that person could then be out of work for a few extra days, and out from time to time after that.
“Before you know it, it’s four weeks and they are in and out of work, and because it didn’t start out as FMLA, no one thought to send out paperwork,” Harold said. “Recognition is often a problem for employers because not every absence starts out as FMLA.”
Since that sort of intermittent leave is allowed under the act, Harold said, keeping the initial paperwork and FMLA documents straight should always be a priority for employers.
Failing to Investigate Fishy Absences
For many people, intermittent leave can be helpful for dealing with a debilitating condition.
But according to McCarter & English LLP partner Hugh Murray, in some cases a person who suffers from a certain condition might just be using it as an excuse to milk allotted FMLA time — “to take a day off when they want to take a day off.”
Such a situation, he said, can breed resentment among co-workers, who could see a person’s absences as an abuse of the system, and who might even retaliate against that worker. Employers should therefore make sure they take any tips of fraudulent behavior seriously and try to see if any dubious activity is taking place.
“In situations where ‘Joe’ claimed he couldn’t work because of asthma, but someone saw him windsurfing, an employer needs to follow up,” Murray said. “They can hire a private investigator if there’s a reason to think a person is faking it.”
But attorneys said employers shouldn’t only rely on direct tips. They should also be on guard for other classic examples of suspicious activity, like an employee whose unpredictable condition has a pattern of regularly “flaring up” on Mondays or Fridays, leading the person to consistently take three-day weekends.
When it comes to investigations, Zinkil said, an employer must head off any potential for abuse by completing a sufficient certification of an employee’s need for leave at the start, and recognize that an employer has the right to request a second opinion — at its own expense — when there’s reason to doubt the initial certification.
If any questionable activity begins to occur during the leave period, Zinkil said, the FMLA allows for requesting recertification to make sure an employee’s leave is still needed, a provision Murray advises employers to take advantage of periodically in such situations.
But while some workers may try to game the system, Murray said, “for the most part, there isn’t a ton of abuse that way.”
~Author: Vin Gurrieri; Editing by Mark Lebetkin and Aaron Pelc