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Presagia’s FMLA Intermittent Leave Guide

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Table of Contents

Introduction .................................................................................................................................................. 3

Why Is It So Complicated? ............................................................................................................................ 4

Different faces of intermittent leave ........................................................................................................ 4

The Basics: What Is It? Who Gets It? ............................................................................................................ 5

Rights and Obligations .............................................................................................................................. 6

Accurately Administering Leave and Discouraging Abuse ............................................................................ 8

A Compliant Leave Program........................................................................................................................ 10

NOTICE

Copyright Presagia 2012. All rights reserved.

Presagia is a registered trademark. The Presagia logo is a trademark of Presagia Corp. Other trademarks

identified in this document are the property of their respective owners.

Information provided within this guide is not intended to be used as legal guidance. Presagia maintains that

legal counsel should always be consulted when considering or implementing changes to the leave processes

and policies.

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Introduction

Long time employee, Sophia has requested intermittent leave under the Family and Medical Leave Act

(FMLA) for her anxiety. Matthew is going to need some intermittent leave for his allergies which become

disabling in the spring. Dave has applied for intermittent leave because of his asthma attacks and Chloe is

looking for intermittent leave time to bond with her newborn. With so many variations of what intermittent

leave can look like and mean, it’s not surprising that properly tracking and managing intermittent leave has

become one of the biggest pain points for employers.

While the FMLA was enacted nearly 20 years ago, employers still struggle today to properly administer it. An

already complex piece of legislation, the FMLA has further challenged employers with the obligation to grant

intermittent leave. Unlike most other leaves that are taken in a continuous block of time, intermittent leave

can take on many forms and is largely open ended, sometimes extending for years.

In order for an employee to qualify for intermittent leave, they must show that the need for leave is

“medically necessary.” What does that mean and how can an employer accurately evaluate medical

certifications? If a certification comes back incomplete or with insufficient information how do you handle it?

Which is the best method to ensure that the right information is included when recording absences and how

do you correctly designate them? In which increment of time should you be tracking your intermittent

leaves? What do you do if an employee seems to be taking more leave than they were approved for? How

do you spot such cases?

The purpose of this whitepaper is to help you better manage intermittent leave by:

Summarizing intermittent leave and its different faces

Highlighting some key employer rights and obligations

Outlining how to take control and discourage employee abuse

Examining what a compliant leave program should look like

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Why Is It So Complicated?

Intermittent leave by its very nature is unpredictable and complications come from many sources. As an

employer, you can’t ask too much. You need to always keep the Americans with Disabilities Act (ADA) in

mind. Employers are often unsure how much of a variation is acceptable. The fact that employees can have

multiple FMLA cases open at the same time only increases the complexity. For example, someone who has

been approved for intermittent leave for diabetes can then also be approved for depression. Another

employee, approved for intermittent leave for severe migraines then becomes injured and needs to take

continuous leave. As long as the employee has not exhausted their FMLA entitlement, a single employee can

have one, two, three or more cases open at any given time.

A common mistake that employers make is expecting that the collection of absence data alone will suffice

for leave management. Absence data is useful for calculating leave entitlement but not for the broader

issues of leave program participation, eligibility or applicability of leave laws to the absence reason.

Compliance elements such as who the leave is for, a detailed absence reason, whether it represents a new or

existing leave and more are missing from this model and can seriously impact your ability to meet

compliance targets. If your absence code only says “FMLA,” how do you know which leave case to designate

the absence to? So while you may be collecting enough information to manage basic payroll functions, major

compliance targets may be overlooked.

Employers also often lack the proper communication channels to ensure the leave team receives the

information they need in time to respond in a compliant manner to leave events. Compliance driven

programs are most successful when the leave team has access to tools to help them monitor and manage

participation in leave programs and have visibility into absence reporting to match these events to leaves.

We will discuss these and other issues further in this whitepaper.

Different faces of intermittent leave

To be deemed “medically necessary,” an absence reason must meet the requirements of what is considered

a “serious health condition,” which under the FMLA is defined as an illness, injury, impairment or physical or

mental condition that involves inpatient care or continuing treatment. Due to the breadth of what

constitutes a serious health condition for intermittent leaves, it is often difficult to determine if an

intermittent absence is FMLA qualifying. Often this is exacerbated by employers trying to use their time and

attendance data to identify FMLA intermittent leaves when in fact this data lacks the necessary depth.

However, the first step to solving any problem is knowing what you’re dealing with. Following are the

different forms of intermittent leave:

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1. Predictable and certified

An employee requests intermittent leave in advance, it is approved and is scheduled for a foreseeable event.

This is the best case scenario for employers as it is straightforward and can be planned around. An example

of this would be scheduled appointments or follow ups for a known and existing medical condition.

2. Unpredictable and certified

Related to an unpredictable but qualifying health condition for a certified absence, for example, severe

morning sickness. So while the condition is expected, the effects can happen at random and absences are

therefore unpredictable.

3. Unexpected and uncertified

Essentially a no-show situation in which the employee is not expected or certified to miss work, but does so

anyway and claims intermittent leave as the reason. Even if this kind of absence is related to a serious health

condition that qualifies, the leave must be approved for the absence to qualify for FMLA.

4. Chronic and ongoing

In this case there is a regularly recurring need for leave for a known and ongoing medical condition that the

employee will have to deal with on a continual basis. These are for medical conditions such as diabetes or

asthma.

5. Reduced leave schedules

Instead of taking time off for appointments or as the need arises for different medical conditions, another

option is to place an employee on a reduced schedule, reducing the hours worked by day or per week.

6. Events outside of certification parameters

In this situation the employee has an approved intermittent leave, yet at some point the leave deviates from

what the leave was meant to entail, for example an employee who has been approved for bi-monthly

appointments suddenly starts scheduling three or four appointments a month. This is exactly the kind of

situation for which an employer may require recertification.

The Basics: What Is It? Who Gets It?

FMLA leave can be taken intermittently in day, hour and even minute increments. As previously mentioned,

intermittent leaves must be medically necessary in order to be approved. Initial medical certifications should

support the medical necessity of the leave and employers are entitled to information about the expected

frequency and duration of the leave.

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The basics of intermittent FMLA are the same as FMLA for continuous

leave: eligible employees may take up to 12 weeks of unpaid job

protected leave in any 12 month period or up to 26 weeks to care for

an injured servicemember. For more detailed information regarding

eligibility, entitlement and medical certification requirements,

download Presagia’s FMLA Guide at www.presagia.com/FMLAguide.

Rights and Obligations

Employers who want to properly and compliantly administer

intermittent leave must be aware of their rights and obligations during

the process.

Initial Request and Correspondence

When an employee requests any form of leave, it is obligatory that

employers fully assess the right to FMLA leave. Employers must then

inform the employee of their rights and responsibilities while outlining

any applicable company policies. In this preliminary eligibility notice

the following must be included:

If the employee is required to provide medical certification

The 12-month period used – employers have the right to choose

this and may select the calendar year, a rolling 12-month period,

any fixed 12-month “leave year” such as a fiscal year or the

period measured from when the employee’s FMLA leave begins

The company policy regarding the right or requirement to

substitute accrued paid leave

If the employee is required to pay health care premiums to maintain benefits

If a fitness for duty or medical release form must be obtained to return to work

The FMLA’s job protection guarantee, but also the consequences of not returning to work

Medical Certification

An employer can require an employee wishing to take intermittent leave to submit a medical certification

from their healthcare provider confirming the need for leave, as well as the frequency and duration of the

leave episodes required. When the appropriate form is returned, the employer generally has five business

days to review the medical certification to make sure that it contains sufficient information. If it does, the

request must then be evaluated and approved or denied. If it does not contain sufficient information, the

employee generally has seven days to resubmit the medical certification with any missing information.

FMLA Doesn’t Live Alone

You must also remember that

employer obligations may exist

under the ADA even if there are

no FMLA obligations. Under

the ADA, leave and flexible or

even part-time work schedules

may be required as a

reasonable accommodation if

they do not pose an undue

hardship to the business. The

key to ADA reasonable

accommodation cases is an

effective and interactive

process to explore potential

accommodations.

The ADA Amendments Act

(ADAAA) of 2008 dramatically

expanded the ADA’s definition

of “disability” resulting in even

more temporarily disabling

conditions now triggering

accommodation obligations.

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Employers must clearly post and display employees’ FMLA rights and responsibilities. The DOL offers free

posters, available in English or Spanish, at www.dol.gov/whd/regs/compliance/posters/fmla.htm.

Be sure to include FMLA policies in employee handbooks as well. These should be provided upon hiring

and redistributed whenever changes are made to the legislation itself or company policies.

Employers can choose to request a second opinion if the information provided is insufficient or there is a

reason to doubt the original evaluation. While you may request a second opinion from the healthcare

provider of your choice, it is at the employer’s expense, not the employee’s. If the first and second

evaluations differ, a third opinion may be requested, also at the employer’s expense.

Advance Notice

While there may often be situations where advance notice is not possible, once a leave has been approved,

employers have the right to require that advance notice be given by the employee, when possible. If the

intermittent leave is foreseeable, the employee must give 30 days’ notice. If fewer than 30 days is given, you

may delay the leave until at least 30 days after the date you actually receive notice. Where the need for

leave is unforeseeable, employers can require that employees provide notice as soon as possible and

practical, taking into account the circumstances of the situation. In this case, it is generally accepted that it

should be realistic for an employee to provide notice of the need for leave either the same day or the next

business day after becoming aware of it.

Recertification and Monitoring

Employers also have the right to require employees on intermittent leave, for chronic and ongoing

conditions, to see their doctor at least twice a year for recertification. If the conditions of the leave start to

change before the six month period, an extension is requested, the frequency changes or there is suspected

abuse, you may request the recertification sooner, but no more often than every 30 days.

Reinstatement

If an employee on intermittent leave holds a position where taking such leave disrupts the employer’s

operations, employers have the right to reassign them. The alternate position however must be equivalent

to their initial position in terms of pay and benefits. You cannot demote an employee or reduce their

benefits when reassigning them. The only situation in which an employee may lose their right to

reinstatement is when that employee is considered a “key” employee whose absence would cause

“substantial and grievous economic injury” to the employer, according to the Act.

Record Keeping

Lastly, it is the employer’s responsibility to keep FMLA records for at least three years. There is no

standardized format or procedure necessary, the records simply need to be readily available if ever

requested by the Department of Labor (DOL).

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Accurately Administering Leave and Discouraging Abuse

While intermittent leave will remain the most problematic

and easily abused area of the FMLA, aggressive

management of it does not mean discouraging your

employees from taking leave when it is legitimately needed.

For qualifying employees, FMLA and intermittent leave is a

right and all communication and interactions should

reinforce your respect for the employee’s right to take

intermittent time off or extended leave for FMLA qualifying

purposes. In fact, these initiatives should ideally help FMLA

become even more valued by management and employees.

In the following section we will explain ways in which

employers can better manage intermittent leave in order to

discourage potential abuse.

Maximizing the Medical Certification Process

One of the best tools employers can use to discourage

abuse is the initial medical certification process. This

beginning stage allows employers to justly and lawfully

request thorough information regarding the need for leave.

If the provided medical certification is not sufficient,

employers can send a written deficiency notice to the

employee communicating what they must do to obtain

FMLA protection. You must provide at least 15 days for the

employee to return it. Finally, if the certification is not

returned and there are insufficient reasons for the delay,

you have the right to deny the FMLA leave request.

Independent Medical Evaluations

Independent Medical Evaluations (IME), also referred to as “peer reviews,” are similar to second opinions in

that an uninvolved medical professional assesses the employee’s case. The intention of an IME is to provide

unbiased insight into the FMLA case to evaluate the diagnosis, treatment, work capacity and other factors.

They are different from second opinions in that there is not necessarily a face to face interaction between

the employee and the medical professional. In fact, it could be simply sending the employee’s file to an IME

professional for review.

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Establish Call-In Programs

Effective call-in programs can ensure that all legitimate requests are respected and can assist in preventing

abuse. A successful call-in program will require employees to confirm the reason they are seeking FMLA

intermittent leave and clarify, to the best of their ability, the anticipated duration and frequency. The best

way to ensure that you get enough information during the initial intake and to show consistency in your

administration is to have a standard list of questions to ask employees.

Another important component of your call-in program is to ensure that you capture the right information

when your employees report their absences because of the fact that they may have multiple intermittent

FMLA cases open. Under the FMLA, you are allowed to ask the employee to clarify which FMLA case their

absence is for and should be doing so in order to be able to properly designate the absence. You also need to

ensure that this information is communicated to the right people in your leave team. Finally, your call-in

program should also be verifying that the employee has provided sufficient notice for the need for leave as

required by the company call-in policy and FMLA regulations.

Review Frequency and Duration

In order to ensure employees are taking the leave they have been approved for, it is necessary to

periodically review the frequency and duration outlined in the medical certification and compare this to the

absences the employee has taken. It should be noted that a one to one comparison does not work, but

rather you should be looking for significant deviations from the expected frequency and duration. If

deviations are apparent, you may request recertification.

Surveillance

If there is a concern of suspected abuse, say the employee consistently takes Mondays and Fridays off,

employers may choose to enforce a check-in policy that goes beyond the call-in program or even to conduct

surveillance. Interfering with an employee’s FMLA leave is unlawful and it is advised to consult with an

employment counsel in advance about steps of this nature. Consider the circumstance of the leave – is there

a physical limitation with visible restrictions or something harder to substantiate – and the possible

outcomes, both positive and negative. Any measures that are taken must not invade the employee’s privacy

or that of their family.

Video surveillance of an employee to prove FMLA intermittent leave abuse (Scruggs v Carrier

Corp, 2012) may seem like a more extreme measure than calling an employee on leave

(Terwilliger v Howard Memorial Hospital, 2011) but the courts may disagree with you, which is

why it’s crucial to carefully assess each situation in which surveillance is proposed.

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Paid Leave

Offering paid company policies is another way to gain more

control over intermittent leave. As an employer, you can offer a

paid leave policy that employees can take when they are also

taking FMLA, either for part or all of the time. You cannot

interfere with your employees’ right to take FMLA, however if

they want to be paid for missed time, you can set additional

eligibility requirements for advance notice, certification, absence

reporting and more. This carrot and stick approach can be used as

an incentive for employees to use leave more responsibly.

You can also require employees to use their paid time off, for

example vacation, when they take FMLA as a way to deter abuse.

A Compliant Leave Program

The DOL’s Wage and Hour Division (WHD), responsible for the

enforcement of FMLA and its litigation, has added hundreds of

new investigators to their team in recent years to respond to the

25,000 workers who contact them for assistance regarding FMLA,

minimum wage and overtime violations. With the number of

complaints on the rise and a commitment from the DOL to

increase targeted efforts, employers need to have a consistent

and effective compliance strategy in place.

Different leave types may run concurrently and in order to be

compliant, all appropriate leaves must be designated.

Accordingly, when an employee has requested an FMLA leave, a compliant leave program will also identify if

the absence is covered by any other leave programs and whether they will run concurrently or not. When

properly implemented, a compliant program should be doing the following:

Capture detailed reasons for absences

Make frequency and duration information readily accessible for approved FMLA leaves

Expose any suspicious absence patterns, suggesting misuse of FMLA

Identify if an absence is also covered by other leave programs

Trigger the need for recertification when absence patterns deviate from those certified

Ensure that all leave types are applied consistently and equitably to employees

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Make Technology Work for You

The simplest way to accurately administer intermittent leave is to

ensure that you exercise your rights consistently. This is one area where

a compliance driven software solution can greatly enhance your leave

management administration. Tools like auto-generated follow-up tasks

and leave correspondence ensure that every employee and leave request is treated in the same manner. Not

only does this enhance compliance, it streamlines processes and allows both the employer and employee to

adhere to deadlines, while also reducing risk under the ADA for discrimination.

If your technology is not working for you, it is not working. There are several aspects where technology can

be utilized to improve and expedite the leave process. The right software will:

Tell you when to complete leave tasks to meet compliance

Automatically generate leave correspondence to meet deadlines and protect your organization

Track dates, reasons and follow-up actions for leaves that are approved

Conduct automatic checks to make sure employees haven’t overstepped their entitlement

Identify undesignated absences and trigger follow ups

Coordinate the use of paid leave with unpaid FMLA leave

Provide monthly entitlement updates for the employee

Maintain copies of all employee correspondence with a full audit trail

Overall, your program should provide the level of detail needed to determine leave compliance. With a

compliant leave program in place, the next time Sophia, Matthew, Dave and Chloe all step forward with

different intermittent leave requests, it will no longer seem like a labor intensive chore but rather a

manageable part of your regular internal operations. Combined with the right software offering, managing

intermittent leave can be simplified while ensuring that employee and employer rights are both respected.

About Presagia

“Almost compliant” means

you’re always at risk.

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About Presagia

With offices in the U.S. and Canada, Presagia provides integrated absence management software solutions

to employers and Human Resources Outsourcing Providers. These innovative solutions, designed to account

for more than 450 pieces of federal and state leave legislation across 53 jurisdictions, enable organizations to

increase efficiency, improve compliance, control absence, and reduce risks and costs. Presagia customers are

located around the world and include enterprises such as Ceridian, the University of Pittsburgh Medical

Center, CenturyLink/Qwest, American Foods Group, Scripps Health and Multicare Health System.

www.presagia.com