Tackling Intermittent Leave

Posted on October 30, 2015 in Compliance

Today’s newsletter is a recap for those who could not attend my October 21 lunch and learn presentation on intermittent leave.    The FMLA allows employees to take intermittent leave; that is, to take time off in separate blocks of time generally through a reduced number of hours worked in a workweek or workday.   Here are five quick tips to confronting the challenges created by intermittent leave.

• Permit intermittent leave only if the employee can perform his normal job duties while at work.

Whether leave is to be taken continuous or intermittent should be dictated by the employee’s doctor on a completed “Certificate of Health Care Provider” Form (WH-380). If the physician indicates the employee cannot perform his normal job duties for an extended period of time, then the employee may be entitled to continuous leave but not intermittent leave.  The FMLA does not allow an employee to work intermittently if the employee cannot perform his normal job duties during the time that he can be at work.   Never let an employee exploit FML intermittent leave as a means of lessening their job duties.   An employee seeking modification of job duties must turn to the ADA, not FMLA, for relief.

1. Establish the leave entitlement in writing.

An employer should examine the actual number of hours an employee works during the prior 12 months to determine the leave entitlement.  For example, if an employee regularly works a 50 hour work week, than 10 hours of leave time equates to 1/5 of a week of the employee’s 12 weeks of FMLA entitlement.  Similarly, if an employee only works 30 hours a week, than 10 hours of leave is 1/3 of a week of the employee’s 12 weeks of FMLA entitlement.  The employer should establish these parameters in writing to avoid any subsequent controversy or debate.

• Deduct all leave time.

Employers should take more advantage of DOL regulations that allow for deducting FML time from mandatory overtime that an employee rejects based on the FML condition.   If the employee would normally be required to work overtime, any overtime the employee cannot work because of the FML condition should count against the person’s leave time. In contrast, overtime that is voluntary or worked on an “as needed” basis may not be deducted against FML use.

1. Don’t relax the rules.

Employers may require employees on intermittent leave to comply with “usual and customary” notice requirements.  This includes call-in policies.  Thus, an employer may discipline (and even discharge) an employee who fails to call-in an absence in which the employee contends qualifies for intermittent FML.   The opposite is true as well.  An employer should never discipline an employee for an absence if FML is already known to be connected to the absence. Most obviously, an employer must apply these policies uniformly or otherwise face the risk of retaliation claims.

• Consider temporary job transfers.

Employers should consider a temporary transfer as a substitute for intermittent leave.  If an employee cannot perform all her job duties because of an FML condition, an employer may offer a temporary transfer to another job that allows an employee to continue working full-time.  The alternative position must have equivalent pay and benefits, but not equivalent duties.   The transfer cannot be punitive or designed to discourage the employee from taking leave.

I hope you found these tips helpful and to see you at my next Lunch & Learn in February 2016.