Employers should communicate apolicy ahead of time that workers speak with their managers ordesignated representative prior to taking intermittent leave for aforeseeable reason. (Photo: Shutterstock)

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

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“Intermittent FMLA leave may be problematic for employersbecause it opens the door for abuse by employees and moreopportunities for an employer to fall short during the notice andcertification process to prevent the abuse,” the authors write.

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Related: Paid leave policies in thespotlight

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XpertHR recommends that employers implement strategies to lessenthe chance of abuse, and offers these nine considerations to manageintermittent leave:

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Employers need to first determine whether they aresubject to the FMLA and if the worker's leave is covered.A private employer is covered by the federal leave law if it hasemployed 50 or more employees for each working day during at least20 calendar workweeks in the current or preceding calendaryear.

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Employers meeting this criteria must grant a worker intermittentleave when the employee has a serious health condition; theemployee is needed to care for a spouse, parent or child with aserious health condition; it is medically necessary for theemployee to care for a service member with a serious injury orillness; or a military exigency arises out of a military member'scovered active duty or call to covered active duty, such as makingchildcare arrangements.

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Employers should set up a procedure for requesting FMLAleave. XpertHR recommends that employers communicate apolicy ahead of time that workers speak with their managers ordesignated representative prior to taking intermittent leave for aforeseeable reason, such as a planned medical treatment.

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

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Employers should require certification for support of anintermittent leave request. “The medical certificationform is an important tool for managing intermittent leave,” theauthors write. “The certification form can be used to determine ifintermittent leave is medically necessary and can be used to curbabuse.”

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

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

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“An employee abusing intermittent leave may also negativelyaffect the morale of the workplace,” the authors write. “As aresult, an employer should follow up on questionable absences andengage in the recertification process to ensure the absences arecovered by the FMLA.”

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However, the law does not have a recertification provision forleave to care for a covered service member or to address a militaryexigency.

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

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“An employee will often go to his or her direct supervisor withleave requests and issues, rather than to HR or the employer leaveadministrator representative designated to take leave requests andquestions,” the authors write. “A supervisor is also in the bestposition to gain knowledge from the employees he or she managesthat may suggest a leave abuse issue. Therefore, supervisors needto recognize potential FMLA leave requests and potential FMLA leaveabuse and when to involve HR or the leave administrator.

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Katie Kuehner-Hebert

Katie Kuehner-Hebert is a freelance writer based in Running Springs, Calif. She has more than three decades of journalism experience, with particular expertise in employee benefits and other human resource topics.