Workers have the right to take intermittent leave under the Family Medical Leave Act when meeting certain criteria, but employers must take steps to make sure no one is abusing that right, according to XpertHR's white paper, “9 Tips to Cure the FMLA Intermittent Leave Headache.”

“Intermittent FMLA leave may be problematic for employers because it opens the door for abuse by employees and more opportunities for an employer to fall short during the notice and certification process to prevent the abuse,” the authors write.

XpertHR recommends that employers implement strategies to lessen the chance of abuse, and offers these nine considerations to manage intermittent leave:

Employers need to first determine whether they are subject to the FMLA and if the worker's leave is covered. A private employer is covered by the federal leave law if it has employed 50 or more employees for each working day during at least 20 calendar workweeks in the current or preceding calendar year.

Employers meeting this criteria must grant a worker intermittent leave when the employee has a serious health condition; the employee is needed to care for a spouse, parent or child with a serious health condition; it is medically necessary for the employee to care for a service member with a serious injury or illness; or a military exigency arises out of a military member's covered active duty or call to covered active duty, such as making childcare arrangements.

Employers should set up a procedure for requesting FMLA leave. XpertHR recommends that employers communicate a policy ahead of time that workers speak with their managers or designated representative prior to taking intermittent leave for a foreseeable reason, such as a planned medical treatment.

“This is an interactive process in which the employee advises his or her manager why he or she is taking time off and both parties attempt to schedule the leave in a way that does not unduly disrupt business operations (unless impossible due to emergency),” the authors write.

Employers should require certification for support of an intermittent leave request. “The medical certification form is an important tool for managing intermittent leave,” the authors write. “The certification form can be used to determine if intermittent leave is medically necessary and can be used to curb abuse.”

The medical certification should specify the predicted frequency and duration of the employee's need for leave in terms of times per week or month, and hours or days per episode; state that intermittent leave schedule is medically necessary; and include the likelihood of unforeseeable episodes of incapacity or flare-ups, and the frequency and duration of such episodes or flare-ups.

Employers should consider recertifications if the duration of the employee's absence changes. Or if the frequency of the employee's absences change; the nature of the illness changes, or the severity of the illness changes or complications associated with the illness arise.

“An employee abusing intermittent leave may also negatively affect the morale of the workplace,” the authors write. “As a result, an employer should follow up on questionable absences and engage in the recertification process to ensure the absences are covered by the FMLA.”

However, the law does not have a recertification provision for leave to care for a covered service member or to address a military exigency.

Other strategies that XpertHR recommends that employers follow include requiring a worker to use paid time off if allowed; enforcing FMLA policy and call-in procedures; properly tracking FMLA-related absences; considering a temporary transfer; and training supervisors.

“An employee will often go to his or her direct supervisor with leave requests and issues, rather than to HR or the employer leave administrator representative designated to take leave requests and questions,” the authors write. “A supervisor is also in the best position to gain knowledge from the employees he or she manages that may suggest a leave abuse issue. Therefore, supervisors need to recognize potential FMLA leave requests and potential FMLA leave abuse and when to involve HR or the leave administrator.

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How to prevent employees from abusing intermittent leave policies

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