January 15, 2014 Articles

Responsibly Handling FMLA Intermittent-Leave Requests

Failing to treat leave requests with due care can result in litigation that proves far more costly than the leave itself.

By Don Davis – January 15, 2014

Congress adopted the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601 et seq., to prevent and remedy discrimination against employees who must miss work due to their serious health condition, the birth of their children, or to care for family members suffering from a serious health condition. Congress amended the FMLA in 2008 and again in 2009 to provide fairly expansive protections for employees who need time away from work for reasons related to their family members’ military service and to clarify the eligibility requirements with respect to airline flight crews. Jan. 28, 2008, Amendments, Pub. L. No. 110-181; Oct. 28, 2009, Amendments, Pub. L. No. 111-84; Dec. 21, 2009, Amendments, Pub. L. No. 111-119. The U.S. Department of Labor promulgates regulations, found at 29 C.F.R. part 825, to give force and specificity to the law’s requirements.

The FMLA as amended provides employees with up to 12 weeks of unpaid leave within a one-year period and a guarantee to return to their position or a similar position. In addition, employers must maintain the qualified employee’s group health coverage. When “medically necessary,” leave must be granted on a part-time or intermittent basis. Employers may not “interfere with, restrain, or deny the exercise of” these rights, and violators are subject to “consequential damages and appropriate equitable relief.” Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 86–87 (2002).

Entitlement to Intermittent or Reduced-Schedule Leave
Intermittent or reduced-schedule leave refers to FMLA leave taken in blocks of time less than the full amount of the employee’s total entitlement. One court has described intermittent leave as “a series of absences, separated by days during which the employee is at work, but all of which are taken for the same medical reason, subject to the same notice, and taken during the same twelve-month period.” Davis v. Mich. Bell Tel. Co., 543 F.3d 345, 350–51 (6th Cir. 2008).

Intermittent leave might take the form of missing a few half-days in a week or missing an hour or two at a time to take a sick child to medical appointments or to stay at home with the child when the child’s condition prevents him or her from attending school. The cumulative amount taken is deducted from the employee’s 12-week entitlement. Reduced-schedule leave might include an employee working part-time for 24 weeks to be able to receive cancer treatments and rest from the accompanying fatigue.

Taking intermittent leave for the placement for adoption or foster care of a child is subject to the employer’s approval. In the absence of a serious health condition, an employer must also consent to intermittent leave requested for post-natal care. If both spouses work for the same employer, both spouses together may only take up to 12 weeks of leave. However, employer consent is not required for intermittent or reduced-schedule leave that is medically necessary due to pregnancy, a serious health condition, or the serious illness or injury of a covered service member. Employer consent also is not required when intermittent or reduced-schedule leave is necessary due to a qualifying exigency, which generally applies to family members of uniformed service members. United States Department of Labor eLaws Employment Law Guide (Nov. 30, 2013).

Qualifying exigencies may include such events as short-notice deployment, military events and activities, child care and school activities, making financial and legal arrangements, counseling, the death of a service member, and some other post-deployment activities. 29 C.F.R. § 825.126.

Regulations specifically prohibit employers from not assigning overtime to employees who would otherwise qualify for it. 29 C.F.R. § 825.205(c). An employer should make sure the employee’s medical certification expressly states that he or she is precluded from overtime before denying overtime.

If an employee is on intermittent leave, a holiday will not count during FMLA leave unless the employee is already scheduled to work on that holiday. 29 C.F.R. § 825.200(h).

If the company is closed for a week or more and a holiday falls within that time period, none of the time the company or facility is closed counts toward the employee’s FMLA leave. 29 C.F.R. § 825.200(h).

Helpful Tips for Employers
Have a clear written policy that details both parties’ responsibilities with regard to FMLA leave. Being able to point to an updated and understandable policy that has been acknowledged in writing by the employee will help you manage employee expectations.

Engage employees who request time off for a health condition or to care for a family member in a process of determining whether that employee qualifies for FMLA leave. Most often, employees will not use magic words such as “FMLA” and “serious health condition” in their requests for leave. You must be attentive to determine whether the request seems like a facially plausible request for FMLA leave. See Sahadi v. Per-Se Techs., Inc., 280 F. Supp. 2d 689 (E.D. Mich. 2003) (employee gave facially sufficient notice of need for intermittent FMLA leave where employee testified at deposition that she told her employer she would like to take vacation days as needed to be with her husband after his hospitalization).

Be proactive by asking enough follow-up questions to determine whether the employee’s request is one that would be FMLA-qualifying. Don’t ignore seemingly simple or routine requests for time off by an employee. For example, if an employee says, “My daughter is not feeling well and I need a little time to take her to the doctor,” you should inquire into whether the employee’s child’s health condition is ongoing or requires more than just one visit to a medical provider. Non-serious health conditions—usually in the form of headaches or minor colds—even of an employee’s child do not ordinarily qualify an employee for FMLA leave. But at least one federal court of appeals has found that even the flu could be a qualifying serious health condition. Miller v. AT&T Corp., 250 F.3d 820 (4th Cir. 2001).

Respond to the employee within a few days to let him or her know how you will preliminarily treat the request for leave, if he or she is already on leave or gave short notice. If the request is for foreseeable leave, let the employee know how you will consider his or her request pending obtaining medical certification and further investigation of the request.

You have a right to request medical certification and you should exercise that right. Upon receiving certification, if you feel that you need a second opinion, you have a right to ask for it. But be careful to provide those from whom you seek a second opinion with all of the relevant information. See, e.g.Humility of Mary Health Partners v. Teamsters Local Union No. 377, 517 F. App’x 301 (6th Cir. 2013) (upholding arbitrator’s decision where employer failed to inform the doctors providing opinions of details concerning employee’s medical condition).

Further, you may and should request recertification at certain intervals pursuant to the regulations. For nonmilitary injury-related health conditions, if the original certification does not specify a minimum period of time, you may consider the original certification expired after 30 days and then request another certification. However, if the original certification does provide a minimum time period, you may only request a recertification once that time period expires and only if the employee requests leave beyond that stated time period.

Last, train all levels of management on how to identify and handle intermittent (and all) FMLA requests. Human resources personnel should not be the only staff educated on FMLA rights and responsibilities. Ensure that anyone with supervisory authority becomes well versed in effectively recognizing and processing an FMLA leave request.

Helpful Tips for Employees
Give your employer clear information about your need for leave and offer medical certification. Do not make your employer guess whether your vague request triggers the employer’s responsibilities under the FMLA. You should supply enough information so that the employer can make a quick determination as to whether your or your family member’s condition qualifies as a serious health condition and when and why you expect to need time off. Requests for intermittent leave are confusing and bewildering enough to your employer as it is, and even though your employer can’t escape its legal responsibilities just because your request is inconvenient, you’ll do yourself a big favor by being straightforward.

If at all possible, provide ample advance notice of your need for intermittent time off under the FMLA (“as soon as is practicable”). 29 C.F.R. § 825.302. The burden is on you to prove that the notice you provided is adequate under the circumstances.

If you need reduced leave, collaborate with your employer to create a mutually satisfactory work schedule. Engaging in a collaborative process with your employer eliminates misunderstandings between employee and employer about when you will need to be out and allows your employer to plan around your absences. Your employer will appreciate your efforts to ensure that the work gets done while you work a reduced schedule.

Often, because of the nature of conditions that trigger the need for intermittent leave, it isn’t possible to work out a fixed reduced schedule. For example, if your child suffers from flare-ups of a chronic condition such as Crohn’s disease, your intermittent leave may call for you to be out sporadically and unpredictably. Make sure you communicate with your employer in writing each time you need to leave without advance notice and explain the reason. For example, send a quick email to your supervisor before getting up to leave your office and indicate the urgency of the situation. Be prepared to provide a doctor’s note or other simple proof that your abrupt absence is a qualifying event.

If your employer has a call-in policy, do not neglect to follow it. Just because your employer has certified that you are qualified for and intend to take FMLA leave, you are not relieved of your duty to abide by these policies when you are able to do so.

Don’t take intermittent leave as vacation or discretionary days—use FMLA leave ONLY for its intended purpose. A federal court in Massachusetts found that where much of an employee’s time away for treatment and support was also spent visiting healthy family and friends, the employer rightfully terminated the employee. Tayag v. Lahey Clinic Hosp., Inc., 677 F. Supp. 2d 446 (D. Mass. 2010).

Make sure that your activities on days on which you have claimed intermittent leave match the medical certification you have provided to your employer. Employers can and will investigate suspected abuse. In one very recent case, an employer terminated its employee after the employer’s private investigator reported that the employee, who was on intermittent leave to take his mother to medical appointments, had not left his house on one of his leave days. Subsequently, even though the employee was able to demonstrate that he had in fact taken his mother to the doctor, the court upheld the termination, finding that the termination was because of an honest, good-faith belief that the employee was abusing FMLA and not because the employer was retaliating against or otherwise interfering with the employee’s FMLA leave. Tillman v. Ohio Bell Tel. Co., No. 11-3857, 2013 U.S. App. LEXIS 20723 (6th Cir. Oct. 8, 2013).

Conclusion
Congress’s purpose in enacting and expanding the FMLA was to provide a safety net for honest employees to avoid having to make the terrible choice between continued employment and caring for their own serious illness or that of a family member. Employers and employees should work collaboratively to ensure open communication, avoid misunderstanding, and promote smooth administration of leave and return to work.

Intermittent-leave requests raise unique questions and issues that require employers and employees to be particularly savvy. Employers should take intermittent-leave requests very seriously and should never allow their feelings of annoyance over such requests to cloud their judgment or impair their ability to assess the situation rationally.

A Russian proverb made famous by President Ronald Reagan’s frequent use, “trust, but verify,” should apply to employers’ approach to handling intermittent FMLA leave requests. While employers should show appropriate sensitivity to the hardships of employees and their families, they should also request medical certification and investigate the purported need for leave.

Ignoring FMLA requests or failing to treat them with due care can result in litigation that proves far more costly to the employer than the employee’s FMLA leave. There is no substitute for expert counsel when drafting FMLA policies and forms for the workplace.

Likewise, employees should be aware of the unique burdens that sporadic and sometimes unpredictable leave can place on employers. While employers carry the burden to give due consideration to proper requests, employees must communicate with the employer and must certify their need for leave. Employees who believe their employer has interfered with their FMLA rights or has otherwise retaliated against them for attempting to exercise those rights should seek competent employment-law counsel to determine whether they have a legal claim for damages.


Keywords: litigation, employment law, labor relations, FMLA, leave request, serious illness, reduced schedule leave


Don Davis is an associate with The Noble Law Firm, PLLC, in Chapel Hill, North Carolina.


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