Intermittent FMLA leave can stretch endlessly
System
5,885 Posts
We want to revamp our FMLA policy which now states that leave for medical may be taken intermittedly or on a reduced schedule but that leave for pregnancy or adoption must be taken consecutively.
We want to be able to allow EEs to take any FMLA (medical or maternity, or pregnancy) intermittedly or on a reduced schedule as long as it works operationally or if it is medically necessary.
With our rolling 12 mo period, intermitted leave can drag on a long time. Say a restaurant manager leaves for maternity and wants to work part time. Her leave is for 480 hours, working part time would stretch her leave out six months,likely not a good thing operationally in a restaurant.
Is it ever possible to provide FMLA on a reduced or intermitten schedule without stretching out the leave?
We want to be able to allow EEs to take any FMLA (medical or maternity, or pregnancy) intermittedly or on a reduced schedule as long as it works operationally or if it is medically necessary.
With our rolling 12 mo period, intermitted leave can drag on a long time. Say a restaurant manager leaves for maternity and wants to work part time. Her leave is for 480 hours, working part time would stretch her leave out six months,likely not a good thing operationally in a restaurant.
Is it ever possible to provide FMLA on a reduced or intermitten schedule without stretching out the leave?
Comments
You may find that a scheduling of the intermittent leave will help you. For example, I'm currently working a reduced schedule (this is an additional policy offered by my employer-beyond FMLA, but administered in a similar way)...I have scheduled days on and off...they are the same each week and offer a finite end.
If your manager works reduced hours, but they are the same from week to week, scheduling won't be such a headache.
The other upside is that you will offer your ee more flexibility and she will be more likely to remain your employee and you'll avoid the hiring and training headache.
I'm not saying these employees don't have a legitimate, qualifying medical condition (ok, maybe there's one or two that I question), but I think they've taken full advantage of the situation. Imagine how hard it is for other employees who are required to work 40 hours/week to maintain their FT benefits! I kinda think that the 8 hr/week intermittent FMLA bug is spreading through the company. Really, is there any way to stop this?? As far as I can tell, as long as their physicians are willing to sign the papers indicating intermittent leave is necessary, I think we're screwed!
When offering FMLA intermittedly or on a reduced schedule, can an employer place any stipulations on how the leave can occur, IF the leave is not medical? A manager has a baby and realizes she'd like to spend more time with the baby and wants to come back to work 1/2 to 3/4 time. We want to be able to say (if it is not medical) leave time needs to work operationally as well as for the EE. Like maybe she needs to compromise and work 3/4 to closer to full time.
1) Requiring the EE to get a 2nd opinion at your expense. Then if the EE doesn't agree with the evaluation, go for the 3rd, again at your expense.
2) If you see a pattern wherein the EE is typically taking a Monday and/or Friday off, require the EE to obtain medical certification verifying the need for these specific days off. This is the one that I have found the most useful but still physicians are hesitant to go against what the patient wants for fear of malpractice.
I have one EE who "lost track" of his FMLA time and ended up running out. When his physician contacted me about the situation I let him know that the majority of the EEs time off was a Monday-Tuesday combo.. Needless to say the doctor was not happy but his response to me was that he felt caught because, "pain in subjective and even though the medical tests didn't show any further degeneration" he couldn't tell the EE that he (the EE) was not in pain.
Tough situation!!
PORK
Intermittent/Reduced Schedule Leave
The FMLA permits employees to take leave on an intermittent basis or to work a reduced schedule under certain circumstances. CFR Section 203)
Intermittent/reduced schedule leave may be taken when medically necessary to care for a seriously ill family member, or because of the employee's serious health condition.
Intermittent/reduced schedule leave may be taken to care for a newborn or newly placed adopted or foster care child only with the employer's approval.
Bottom >line, can the intermittent leave be dictated by
>operational demands when no medical neccessity
>applies?
Therein lies the problem. You must have medical certification in place to allow any leave, now your wanting to question the physician and say there is no medical necessity. Not to sound cruel, but that is when ERs get themselves in hot water, wanting to play doctor. Unless you have undisputable evidence that the circumstances have drastically changed since you first approved this intermittent leave, then I would not want to go back now and rescind that approval or make changes.
Just be glad you're not in TN and have a maternity leave law that grants 4 months which was just recently amended to include adoption as well as granting 4 months for fathers!!!!!!
I got a call back from Federal Wage and Hour who said that if you grant intermittent leave (which is optional if not a medical neccesity) you may place stipulations on the leave (again, if there is no medical necessity). She said as long as there is no medicalnecessity, the employer has the right to withold or grant the leave. I our case of restaurant management, we can require that the leave work with operational demands (if no medical). She used healthy birth and adoption as examples.
And yes, if you grant a leave intermittedly, the leave time is extended. She double checked with her supervisor to make sure no oppinion letters had come in on this that she is not aware of, sounds the little details of how FMLA works are being decided frequently.
Sounds like in TN and elsewhere, you have a lot more state stipulations to deal with aside from this Federal information.
For example, here in WI the WIFMLA dictates that employees are able to use FMLA leave for the birth of a child intermittently but it goes on to specify that the amount of leave that can be used is a total of 6 weeks and must be used within 16 weeks of the birth or adoption of the child. Since we have no choice but to grant this, we do. We do, however, require that the leave be scheduled at least 30 days in advance and once the 16 weeks are up, any remaining leave needs to be taken as one full block of time.
What I do in these instances is sit down with the individual, normally it is the father, approx. 6 weeks prior to the scheduled birth (or adoption), go through their rights with them and suggest they talk with the mother of the child to determine when they will be taking the leave. I then schedule another meeting with them to get the specific schedule. Once that is set I inform them that any additional leave within that 16 week period needs to be scheduled at least 30 days in advance but I do grant them two (2) last minute call-in FMLA days (in case the baby is cranky, etc.). This works really well since we are able to schedule around the EE's absence.
Hope this helps.