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
||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.
||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.
||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.
||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
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.