The intermittent FMLA scrimmage

Nora T. Akins

The Family Medical Leave Act (FMLA) entitles employees to take an unpaid, job protected leave. It affects employers with 50 or more employees to assist employees in balancing the demands of the workplace with family needs. Eligible employees may take time off to care for themselves and their families. Employees are entitled to up to twelve weeks off in a year in most cases, and 26 weeks off for military caregiver leave.

Most employers understand the need and abide by the regulations. The record keeping of intermittent leave poses a burden to some employers. Time off may be taken in the smallest increment of time the employer uses for other leaves, but no more than one hour increments. An example of intermittent leave is taking the afternoon off for dialysis on a scheduled basis. Another example is time off on an unscheduled basis for migraine headaches. In both instances, the employee is entitled to leave regardless of the employer’s staffing need.

The burden on some employers is more mistrust of the employee than recordkeeping especially when intermittent leave is on an unscheduled basis. Employers need to accept and understand the 23-year-old law. The law is well-intentioned and serves a good purpose. It does not require employers to tolerate abuse. Employees on intermittent leave must follow the rules. Employers who do not understand the regulations tend to avoid interaction with the employee on leave, which feeds mistrust.

An employer who treats FMLA in a casual manner opens the company up to inconsistent administration that can lead to allegations of discrimination as well as employee misuse. Employers should follow the federal guidelines and their internal procedures precisely and consistently. Employers should use the Department of Labor’s FMLA forms to provide the employer and employee guidance. Employee medical leave should be contingent on the Health Care Provider’s documentation of the employee’s inability to perform the job.

The employer administering the intermittent leave should have a clear picture of the employee’s FMLA life. If the Health Care Provider states the condition is random, the employee’s absences should not have a pattern. The law is not the Friday Monday Leave Act. Communication about the employee’s needs should be open. Doctor’s appointments or medical treatments should not come as a surprise or result in an unscheduled absence. Consider changing your attendance policy to read, “provide notice of absence as soon as practical and possible” rather than a specific timeframe.

Employees using FMLA are required to follow the call-off procedures. Employers should establish clear and precise policies to call-off from work. The employee can be required to call-off personally using specific communication means, such as the telephone and contact a specific person to report the reason for the absence and expected time of return. The employee must provide enough information for the employer to connect the absence to the certification. Employees can also be required to keep the employer informed of their whereabouts and provide contact information.

One of the most effective tools is interactive communication during intermittent leave. Employers may ask if it is medically necessary; what essential functions cannot be performed; and whether there is any way essential functions can be performed. These questions help the employee and the employer build a trusting relationship. Do not assume; ask, then listen. Open communication builds a respectful workplace.

Nora T. Akins, owner of Strategic Management, focuses on employer compliance and employee performance by providing management training and refining human resource systems. She can be reached at 873-1735 or nora@managepeopleright.com.

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