Maryland Bar Bulletin
Publications : Bar Bulletin : March 2006

Previous | Next

 Bar Bulletin Focus

Labor/Employment Law    

Employer Aspirin for FMLA Intermittent Leave Headaches

For the last 13 years, the Family and Medical Leave Act (FMLA) has provided eligible employees working for covered employers with up to 12 workweeks of unpaid, job-protected leave per year for specified qualifying family and medical reasons. During this 13-year span of time, the FMLA has also provided employers (and those lucky human resources professionals charged with administering the FMLA on a daily basis) with more headaches and administrative frustration than possibly any other federal work-related statute in recent time.

The largest area of FMLA frustration unanimously voiced is administering intermittent leave and contending with intermittent leave abuse. Under the FMLA, if an employee with a serious health condition is able to perform the essential functions of his or her job but is unable to come to work on a regular basis because of the serious health condition, the employee may be entitled to intermittent leave for doctor's appointments or because of unexpected aggravations of the existing chronic health condition that interfere with the employee's ability to come to work on a regular basis. Unfortunately, too many employees have been quick to recognize this FMLA-leave option as an easy way to secure a three- or four-day weekend. To that end, the Department of Labor (DOL) has issued two Opinion Letters that remind employers that there are tools available for deterring intermittent leave abuse.

First, employers may use their right to recertification to help fight FMLA abuse. Employers will commonly find an employee who is eligible for intermittent FMLA leave potentially abusing the leave because of a consistent Monday/Friday absence pattern. Under the FMLA, an employer is permitted to request medical certifications from employees on FMLA leave every 30 days for absences related to chronic serious health conditions such as migraines, asthma, diabetes or epilepsy. Recertification, however, may also be required whenever the circumstance described by the previous certification has changed significantly (e.g., absences become more frequent or prolonged), or the employer receives information that casts doubt on the employee's stated reason for the leave.

In 2004, the DOL issued an Opinion Letter addressing an all-too-familiar problem in many workplaces: an employee using intermittent FMLA leave in a noticeable pattern of Friday and Monday absences. The DOL clarified that a Friday/Monday absence pattern can, in and of itself, constitute "information that casts doubt upon the employee's stated reason for the absence," thus allowing an employer to request recertification more frequently than every 30 days. In such cases, an employer may request recertification more frequently than every 30 days, so long as the request is made in connection with an absence and there is no evidence of a medical reason for the timing of the absences.

The DOL offered guidance for employers making this type of recertification request:

bullet When requesting medical certification or recertification, employers may inform the health care provider that the employee has a pattern of Friday/Monday absences or appears to be absent excessively.
bullet Although an employer cannot contact the employee's health care provider directly, the employer can include information about the pattern of absences in the medical certification form given to the employee for completion by the health care provider. The employer also can provide company records showing the pattern of absences.
bullet The employer can request that the health care provider specify whether the likely duration and frequency of the employee's incapacity due to the chronic condition is limited to Mondays and Fridays.
bullet Further, a health care provider representing the employer may contact the employee's health care provider for purposes of clarifying the information in the medical certification if the employee has agreed to the contact.

On a related matter, in a DOL Opinion Letter released in October 2005, the DOL confirmed that an employer can require a new medical certification, not just recertification, for an employee's first absence in a new 12-month leave year for a previously-certified serious health condition. In recognizing this employer-right, the DOL discussed the employer's right to reassess an employee's FMLA eligibility for leave once the entire current 12-month FMLA leave year had lapsed (meaning assessing whether the employee has satisfied the 1,250 hours of actual service in the year preceding when the FMLA leave would commence). The DOL recognized that FMLA leave could not be taken forever on the basis of one leave request. Therefore, because an employer is within its right to reassess FMLA eligibility based upon hours of work at the beginning of each new FMLA year, the DOL concluded that employers should be afforded the same opportunity to reassess FMLA eligibility by requesting a new medical certification for the new leave year.

Because the employer is requesting a new medical certification, the employer is also within its right to request a second and third medical opinion on the new certification, as appropriate, even when the serious health condition at issue was previously certified and FMLA-approved in the prior 12-month leave year.

This tool will be helpful to employers who have employees using intermittent leave for the same condition (as opposed to employees using larger blocks of continuous leave for acute or unrelated conditions). It is another opportunity to ensure that the FMLA (particularly intermittent leave) is being used for those employees who truly need it, and not those employees looking for an easy way to get away with a year of protected occasional absences.

Randi Klein Hyatt is a partner with the law firm of Shawe Rosenthal, LLP, a labor and employment law firm dedicated exclusively to the representation of management in workplace legal issues.

Previous previous

next Next

Publications : Bar Bulletin: March 2006

Back to top