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Minimum to be considered intermittent FMLA

RuskanenRuskanen 183 Posts
in FMLA/ADA/Workers’ Comp Vote Up0Vote Down
I have an employee whose father is having surgery. The employee wants to be there the day of the surgery. He may take time off after the surgery to help with recovery at home, but he may not if it's not needed. My question, if he only takes the one day, or part of the one day to be at the hospital during and after surgery, can that be considered FMLA? He is running low on unpaid and paid time off and that's why he'd like to consider this FMLA. I know that it can be considered intermittent if he is helping to care for a serious medical condition and decides to take more time off, but just for one day?
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  • marcmarc 3,126 Posts
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    Yes, it can be FML, but that may not have any impact on how he gets paid. FML by itself, is not paid leave, it is job protection. In our shop, we require the concurrent use of all leave banks while the EE is out on FML. Once the banks are exhausted, the leave may continue, but the pay does not.

    I am not positive about Kansas laws, but I do not think the state has more liberal laws than the Fed, and therefore does not require the leave to be paid above and beyond existing leave banks.

    The EE can request FML, but it is up the employer to so designate. And it can happen with or without the EEs permission. The EE does not have an option here, it is the employer's option and the employer's policy, consistently enforced, as to the utilization of leave banks while on FML.
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  • RuskanenRuskanen 183 Posts
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    To provide some clarification. Our company does not require an employee to exhaust other leave banks before or during FML. My question is not whether to pay or not to pay, but whether an absence of only part of a day or one full day can be considered under FML. I would think that a person should use their own time if it is only one day, but that it could be designated as FML if more time is required for an extended period, either full time or intermittent. What do you think?
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  • POPEYEPOPEYE 958 Posts
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    Leave time may be calculated in whatever increments your payroll system will allow, be it by the minute, quarter hour etc. So if you have an EE with a qualifying event (and it sounds like your example would be), then yes they would be entitled to be off the day of the surgery and other days and or partial days as their physician certification states the need for.
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  • Don DDon D 9,834 Posts
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    Ruskanen: You don't post nearly enough any more. You were the first person, back when I started, to jump me for something I said on the Forum. x:-) FMLA regs don't require or suggest that the leave be for any particular minimum unit of time or length of time, only that it not necessarily last beyond 12 weeks. The leave, if certified appropriately and approved by the company, could be minutes, hours, days or weeks, or any combination thereof. If, for example, an employee is 'out of' or has 'exhausted' all types of leave banks, he may indeed be eligible for a few hours or one day of FMLA under the scenario you present. All the doctor need do is check 'yes' in the field asking if the employee's presence might benefit the patient psychologically or if the employee is needed for the care of the patient.
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  • RuskanenRuskanen 183 Posts
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    Don D- I have a hard enough time finding the time to do the things I really need to do around here, so I had to curb my addiction to HR Hero.

    Thanks for your responses. It gets confusing when a leave must be 3 consecutive work days or longer, and/or require hospitalization, and/or ongoing treatment/care from a medical provider. I tend to be generous when granting leave (what the heck, they aren't getting paid) and luckily our employees seem to have a genuine interest in being at work. But I was wondering if only one day was worthy of granting FMLA.
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  • Don DDon D 9,834 Posts
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    I went through a couple of FMLA Investigative visits about a year ago. She was real detail oriented and was pleased to find all of our paperwork and processes in order. She was particularly complimentary about the consistency with which we applied our policy and tracked everything. So, for that reason alone, I think it's wise to treat each incidence of FMLA, no matter how short or simple, just as another, right down to crossing the T's.
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