July 20, 2018
I. Intermittent and Reduced Schedule Leave under the FMLA.
A. What is Intermittent Leave and Reduced Schedule Leave?
1. Reduced schedule leave is predictable, foreseeable leave that reduces the usual number of working hours per workday or per workweek of an employee. Reduced schedule leave usually reduces the employee’s schedule form full-time to part-time. Examples of reduced schedule leave:
a. An employee who needs to temporarily reduce his schedule to attend physical therapy sessions for 4 weeks following surgery.
b. An employee who needs 4 hours of leave every Tuesday and Friday to take his father to dialysis treatments.
c. An employee who after cancer surgery reduces her schedule to 4 days a week because of chemotherapy.
2. Intermittent leave is leave that is unforeseeable and may not happen at all. It is leave that is taken in blocks of time due to a specific illness or qualifying condition that flares up on a sporadic basis. Examples of intermittent leave situations:
a. An employee who suffers from chronic migraines that flare up unexpectedly.
b. An employee who needs chemotherapy over the next two months and may need additional leave following treatment.
c. An employee who is bipolar and suffers side effects from adjustments to the employee’s medication that make the employee unable to perform the essential job functions.
d. An employee who suffers from Post Traumatic Stress Disorder (PTSD) and may need leave when anxiety attacks occur.
e. An employee whose wife is on active duty leave and the employee needs to leave work unexpectedly to pick up a sick child from school because no other caregiver is available.
B. Intermittent Leave Presents Unique Issues for Management.
1. Staffing issues, including asking employees to work extra hours, different shifts, or to take on additional duties and workload.
2. Business disruptions or lost revenues
3. Difficulties with tracking the leave
4. Potential abuse by employees, for example:
a. The employee who needs leave only on Fridays, Mondays or before or after holidays or vacations.
b. The employee who claims to be able to schedule counseling sessions only in the middle of the work day.
c. The employee whose daughter is sick so often that the daughter would need to be held back a grade.
d. The salesperson who schedules a doctor’s appointment and then plays golf the rest of the afternoon.
C. Effective Management. Effective Management of intermittent and reduced schedule leave under the FMLA requires an understanding of when and how to administer leave, avoiding common pitfalls, and adopting best practices to curb employee abuse.
II. The Family Medical Leave Act of 1993, as Amended, Requires Intermittent and Reduced Scheduled Leave.
A. The FMLA Statute Requires Intermittent or Reduced Schedule Leave.
Section 102(b). LEAVE TAKEN INTERMITTENTLY OR ON A REDUCED LEAVE SCHEDULE.
(1) IN GENERAL.--Leave under subparagraph (A) or (B) [birth of a adoption of a child] of subsection (a)(1) shall not be taken by an employee intermittently or on a reduced leave schedule unless the employee and the employer of the employee agree otherwise.
Subject to …Section 103 [certification], leave under subparagraph (C) [to care for a spouse, child or parent with a SHC] or (D) [employee’s SHC] of subsection (a)(1) or under subsection (a)(3) [Military Family Leave] may be taken intermittently or on a reduced leave schedule when medically necessary. Subject to subsection (e)(3) [notice of leave] and section 103(f) [certification], leave under subsection (a)(1)(E) [Family member on Active Duty] may be taken intermittently or on a reduced leave schedule. The taking of leave intermittently or on a reduced leave schedule pursuant to this paragraph shall not result in a reduction in the total amount of leave to which the employee is entitled under subsection (a) beyond the amount of leave actually taken.
(2) ALTERNATIVE POSITION. -- If an employee requests intermittent leave, or leave on a reduced leave schedule, under subparagraph (C) [care for immediate family member] or (D) [employee’s SHC] of subsection (a)(1) or under subsection (a)(3), that is foreseeable based on planned medical treatment, the employer may require such employee to transfer temporarily to an available alternative position offered by the employer for which the employee is qualified and that--
(A) has equivalent pay and benefits; and
(B) better accommodates recurring periods of leave than the regular employment position of the employee. [Bracketed comments inserted by author]
B. The Code of Federal Regulations. (29 CFR § 825.202). The Code of Federal Regulations explains that intermittent or reduced schedule leave is required under the FMLA. 1. Intermittent or reduced schedule leave is required when it is medically necessary for:
a. Providing care or psychological comfort to an immediate family member (spouse, child or parent) with a serious health condition;
b. The employee’s recovery from a serious health condition or treatment for the serious health condition; and
c. Military caregiver leave to provide care for a covered service member who has a serious illness or injury incurred in the line of duty while on active duty who is the spouse, child, parent or next of kin of the employee (26 weeks).
2. Intermittent or reduced schedule leave is also required when it is necessary to address a “qualifying exigency” for an employee’s immediate family member (spouse, child or parent) who is on covered active duty or has been called for active duty. Qualifying exigencies, include: short-notice deployment, military events and related activities, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities.
3. NOTE: Intermittent or reduced schedule leave is not required for the birth or adoption of a child, except when the mother or child has a serious health condition or for prenatal visits. However, an employer may voluntarily agree to provide intermittent or reduced schedule leave.
III. Administering Intermittent and Reduced Leave.
A. Adopt an FMLA Policy. As with any FMLA leave, the first place to start in properly administering intermittent or reduced schedule leave under the FMLA is to adopt a comprehensive FMLA leave policy in the company handbook. Some issues to consider:
1. An employer may limit leave increments to the shortest period of time, not to exceed one hour, that the employer’s payroll system uses to account for absences or use of leave. 29 CFR § 825.205(a)(1).
2. Because the need for intermittent leave is not predictable, the usual 30-day notice requirement is impracticable. Instead, the law requires an employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave. 29 CFR § 825.303(a).
3. The employer has the right to request that unpaid FMLA leave be taken concurrent with paid leave.
4. The employee can be asked to schedule appointments in such a way as to be least disruptive to the company’s business
5. If applicable, rather than grant intermittent leave, the employer may require the employee transfer temporarily to an equivalent position under FMLA Sec. 102(b)(2), 29 CFR § 825.204.
6. The Employer should designate how FMLA leave is measured. That is, FMLA leave is measured using (i) the calendar year, (ii) a fixed 12-month period (such as a fiscal year or the employee’s anniversary date) (iii) a 12-month period measured forward from the first date of leave, or (iv) a rolling 12-month period measured backward from the date the FMLA uses leave. If the employer does not designate the method used, the method that is in the best interest of the employee will apply.
7. A husband and wife who are entitled to FMLA leave for the birth or adoption of a child or to care for a sick parent can be limited to an aggregate of 12 workweeks during a 12-month period.
B. Understand the Notice Requirements under the FMLA.
Administering intermittent and reduced schedule leave requires a thorough understanding of the rights and obligations for notice.
1. Employer’s duty to notify the employee of FMLA eligibility.
a. There is a duty to notify the employee if he or she is “eligible” for FMLA leave within 5 business days after the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason. 29 CFR 825.300(b).
b. Form WH-381. If the EE asks for leave for a medical condition that could be a serious health condition under the FMLA, the employer should not try to diagnose or ask any questions about whether leave is really necessary. Rather, the employer should simply give the employee a completed Form WH-381. Form WH-381 protects the employer if filled out properly and includes key provisions that must be communicated to the employee.
i. How the 12 weeks of FMLA leave is measured
ii. If paid leave is used concurrently with FMLA leave
iii. A summary of the employee’s rights and obligations
iv. Notice that the employee has 15 days to return the certification.
v. Identifies a designated company representative for FMLA leave.
2. The FMLA poster should be displayed in a conspicuous place and manner. (WH Publication 1420)
C. Understand the Certification Process.
1. The FMLA statute describes the certification process as it applies to intermittent and reduced schedule leave. § 103 CERTIFICATION, ***
(b) SUFFICIENT CERTIFICATION.--Certification provided under subsection (a) shall be sufficient if it states ***
(5) in the case of certification for intermittent leave, or leave on a reduced leave schedule, for planned medical treatment, the dates on which such treatment is expected to be given and the duration of such treatment;
(6) in the case of certification for intermittent leave, or leave on a reduced leave schedule, under section 102(a)(1)(D) [the employee’s serious health condition], a statement of the medical necessity for the intermittent leave or leave on a reduced leave schedule, and the expected duration of the intermittent leave or reduced leave schedule; and
(7) in the case of certification for intermittent leave, or leave on a reduced leave schedule, under section 102(a)(1)(C) [for a family member’s serious health condition], a statement that the employee's intermittent leave or leave on a reduced leave schedule is necessary for the care of the son, daughter, parent, or spouse who has a serious health condition, or will assist in their recovery, and the expected duration and schedule of the intermittent leave or reduced leave schedule. [Bracketed comments inserted by author]
2. The Code of Federal Regulations provide the detail about the certification process in 29 CFR § 305-310.
3. At the time the employer notifies an employee that he or she is eligible for FMLA, the employer may request medical certification to determine if the leave qualifies as FMLA leave.
4. There are 4 medical certification forms from the Department of Labor, Wage and Hour Division:
a. WH-380-E (Employee’s Serious Health Condition),
b. WH-380-F (Family Member’s Serious Health Condition),
c. WH-384 (Qualifying Exigency, Military Family Leave), and
d. WH-385 (Serious Illness Covered Service Member, Military Family Leave).
5. In the case of unforeseen leave the employer can request certification within five business days after the leave commences or at some later date if the employer later has reason to question the appropriateness of the leave or its duration. 29 CFR § 825. 305(b).
6. The employee must have at least 15 calendar days to return and complete the certification, unless not practicable. 29 CFR § 825.305(b).
D. Understand the Process for Designating Leave as FMLAQualifying.
1. Within 5 business days of receipt of the completed certification, the Employer must provide a written notice to the employee informing the employee if the leave is being designated as FMLA leave (Form WH-382).
2. If employees do not return forms, forms are incomplete, or employers cannot determine the FMLA leave entitlement, employers can delay the start of FMLA leave. The employer should inquire further of the employee or the spokesperson to ascertain whether leave is potentially FMLA-qualifying. 29 CFR § 825.301(a).
3. Only one notice of designation is required for each FMLAqualifying reason per applicable 12-month period, regardless of whether the leave taken due to the qualifying reason will be a continuous block of leave or intermittent or reduced schedule leave.
4. If an employee submits a complete certification signed by the health care provider, the employer may not request additional information from the employee’s health care provider. However, a health care provider representing the employer may contact the employee’s health care provider, with the employee’s permission, for purposes of clarification and authenticity of the medical certification. 29 CFR § 825.307(a).
5. When the employer receives a completed health care provider’s certification seeking leave on an intermittent basis, the employer should ask if all information has been provided:
- Is it complete and sufficient?
- Does the form make sense?
- Is clarification or a second opinion necessary?
6. If the certification form is not complete or sufficient,
a. Tell the employee and state in writing why you consider it incomplete or insufficient.
b. The employer must give the employee 7 calendar days, or longer if not practicable, to correct any deficient certification and to submit a complete form. 29 CFR § 825.305(c).
7. If the form does not make sense, seek clarification from the Health Care Provider (HCP), with the permission of the employee (confirmed in writing). Talk to the HCP to understand the meaning of a response or to seek authentication that the HCP actually filled out the form.
REMINDER: The employee’s direct supervisor may not contact the employee’s health care provider. 29 CFR § 825.307(a).
Case Note: In Rutschke v. Northwest Airlines, Inc., 2005 WL 2100985 (D. Minn. 2005), the employer sought clarification because the doctor’s statement indicated “intermittent inability to work from ½ day to one week,” and contrarily stated “frequency and duration of the current or expected episodes of incapacity is 1-4 half day(s) during each . . . week..” 8. If the employer determines that the leave will not be designated as FMLA-qualifying (e.g., if the leave is not for a reason covered by FMLA or the FMLA leave entitlement has been exhausted), the employer must notify the employee of that determination and can simply send a letter explaining why the leave does not qualify as FMLA.
9. Disputes. If there is a dispute between an employer and an employee as to whether leave qualifies as FMLA leave, it should be resolved through discussions between the employee and the employer. Such discussions and the decision must be documented. 29 CFR § 825.301 (c).
Case Note: In Verkade v. USPS, 378 Fed. Appx. 567 (6th Cir. 2010) the court affirmed the dismissal of an employee’s FMLA interference claim in part because the employee did not comply with the certification requirement. See 29 CFR § 307(a).
10. Remember that leave can be retroactively designated as FMLA-qualifying. 29 CFR § 825.301(d)
11. Failure to provide notice may subject the employer to liability and monetary damages. 29 CFR § 825.300(e) and .400(c).
E. Understand the Employer’s Right to Seek Recertification or a Second or Third Opinion.
1. Recertification. The FMLA statute allows recertifications to be provided on a “reasonable basis” but does not define the term. The Regulations do discuss recertifications. 29 CFR § 825.308.
a. Recertification can be requested every 30 days unless the duration of the condition is longer than 30 days.
b. If the condition lasts longer than 30 days, the employer must wait until the expiration of the minimum duration.
c. For a life long serious health condition requiring intermittent or reduced schedule leave indefinitely, the employer can ask for recertification every six months.
d. Recertification can also be requested when an employee asks to extend the initial leave request, medical circumstances have changed significantly, or the employer receives information that casts doubt on the need for continuing use of intermittent leave. (e.g., Friday/Monday pattern of absences, need for leave changes significantly after employee is disciplined or placed on action plan, etc.)
Case Note: In a Seventh Circuit case (not controlling in Ohio), a federal district court found that FMLA regulations support a limit on medical verifications for certification and recertification. In Jackson v. Jernberg Industries, Inc., 2010 WL 60921 (N.D. Ill. 2011), Jernberg Industries' attendance policy required its employees to produce a doctor's note following each absence regardless of whether the absence was covered by FMLA. In the Jackson case, the employee's physician had previously provided a certification supporting the need for intermittent FMLA leave for one year. The court ruled that the continued requests for a doctor's note under the company's policy constituted an improper recertification of each intermittent leave of absence. The court concluded that while the FMLA regulations allow an employer that doubts whether its employee's absence is actually related to his FMLA-certified condition to request recertification but they do not provide for any other form of medical verifications.
2. Second or Third Opinions. 29 CFR § 825.307
a. An employer can request a second opinion at the employer’s expense if the employer doubts the validity of the certification. The employer chooses the health care provider.
b. If the opinions of the employee and employer’s designated health care providers differ, the employer can request a third opinion, again at the employer’s expense. The third opinion will control.
F. Fitness-for-Duty Certification. 29 CFR § 825.312 (f).
1. An employer is not permitted to require a doctor’s excuse or fitness-for-duty certificate for each absence taken on an intermittent or reduced schedule basis.
2. However, an employer is entitled to a certification of fitness to return to duty for such absences up to once every 30 days if reasonable safety concerns exist regarding the employee's ability to perform his or her duties, based on the serious health condition for which the employee took such leave.
“Reasonable safety concerns” means a reasonable belief of significant risk of harm to the individual employee or others. In determining whether reasonable safety concerns exist, an employer should consider the nature and severity of the potential harm and the likelihood that potential harm will occur.
3. If an employer chooses to require a fitness-for-duty certification, the employer shall inform the employee at the same time it issues the designation notice that for each subsequent instance of intermittent or reduced schedule leave. See Form WH-382. The employee will be required to submit a fitness-for-duty certification unless one has already been submitted within the past 30 days.
4. Alternatively, an employer can set a different interval for requiring a fitness-for-duty certification as long as it does not exceed once every 30 days and as long as the employer advises the employee of the requirement in advance of the employee taking the intermittent or reduced schedule leave.
5. The employer may not terminate the employment of the employee while awaiting such a certification of fitness to return to duty for an intermittent or reduced schedule leave absence.
IV. Best Practices to Curb Abuse of Intermittent and Reduced Schedule Leave.
A. Ensure the Employee is Eligible for FMLA Leave.
1. They have worked 1250 hours in the past twelve months.
2. They work at a site with 50 or more employees within 75 miles.
3. Revisit whether FMLA rights continue if the employee’s situation or the company’s workforce composition changes (layoffs, closure of nearby facility that results in company meeting threshold for coverage). If the number of employees dips below 50 and stays there for more than 32 weeks in a given 12-month period, FMLA coverage may no longer be required.
Case Note: In Davis v. Michigan Bell Telephone Co., 543 F. 3d 345 (6th Cir. 2008), the employee used intermittent leave for depression beginning in September 2004. On December 13, The Davis began an absence that extended into 2005. Davis had sought FMLA leave for the absences in December and January, the last of which carried over into January of 2005. Her therapist certified the days through January 2 but Davis did not report back to work. The employer notified Davis on January 12 that her absences after January 2 were unexcused and that she would be considered to have resigned unless she returned on January 14. Davis did not return until January 15 and had been terminated by then. She sued and months later provided a certification for the days missed through January 14. The employer responded she was not eligible for FMLA leave for January because she had not worked 1250 hours in the preceding 12 months. The court of appeals affirmed the grant of summary judgment, finding that Congress could not have intended one “set” of FMLA leave to run interminably. The intermittent leave sought in 2005 would have required a reevaluation of her eligibility at that time and she was not eligible because she had not worked sufficient hours. Citing DOL Op. Letter FMLA -112, (Sept. 11, 2000).
B. Deny Intermittent or Reduced Schedule Leave When It Is Not Required by the Statute. Remember, intermittent or reduced schedule leave is not required for pregnancy (except for the serious health condition of the mother or for prenatal visits) or for the birth or adoption of a child (except when the mother or child has a serious health condition).
C. Consistently Require Certifications and Recertifications.
1. Although medical certifications are not mandatory, the employer should insist on medical certifications for all requests for FMLA leave.
2. Attach the job descriptions to the requests for certification forms.
3. Pay attention to patterns of abuse and enforce the employer’s rights to request recertifications and to ask for second and third opinions if the circumstances allow. When requesting recertification due to suspicions about the reason for absence, consider informing the physician of the employee’s pattern of absences, attach a calendar showing the dates missed, and ask if this pattern is consistent with the employee’s serious health condition.
4. Always ask for recertification at six (6) months.
Case Note: In Vail v. Raybestos Products Co., No. 07-3621 (7th Cir. 2008) (not controlling in Ohio) the employee suffered from migraines that "crept up on her on short notice". During the summer of 2005, she missed 33 days of work. The company became suspicious and retained surveillance to monitor her activities and observed her working for her husband’s lawn-mowing business. The company terminated her and the employee sued for interference with her FMLA rights. The Court of Appeals upheld the termination, relying on precedent holding that an employer may refuse to reinstate an employee on an FMLA leave if the refusal was "based on an 'honest suspicion' that she was abusing her leave." The court found that the employer's conduct of surveilling the employee, while perhaps not "preferred employer behavior," was sufficient to give the employer an "honest suspicion" that the employee was not using her leave for the intended purpose.
Case Note: In Cox-Frietch v. Ohio Bureau of Workers’ Compensation, Slip Op., No. 12-3305, 2012 WL 6051972 (6th Cir., Dec. 6, 2012), the employee took intermittent leave under FMLA to care for her sick mother. Per agency policy, the employee was required to substitute paid sick leave for unpaid FMLA leave and once her sick leave balance dropped below 20 hours, the employee was required to provide a physician verification for future absences related to injury or illness. The employee became subject to this policy due to her depleted sick leave balance. While subject to the policy, employee called in sick due to her son’s illness and was disciplined for not providing a physician’s verification for her son’s illness. The employee filed suit, alleging FMLA interference. The Court of Appeals affirmed the trial court’s grant of summary judgment in favor of the employer, noting first that the FMLA allows an employer to require an employee to substitute accrued paid sick leave for unpaid FMLA leave. Second, the court noted the employee was not denied FMLA leave or disciplined for taking leave but, rather, was disciplined for violating a neutral policy relating to verification for sick leave.
D. Insist on Reasonable Notice of Intermittent or Reduced Schedule Leave.
1. Enforce the call-in procedures under the company’s attendance policy.
2. Even if the need for leave comes on suddenly, the employee must give you notice of the need for leave as soon as practicable, which is usually within 1 or 2 days.
E. Require that Leave be Scheduled in the Least Disruptive Way.
Require leave be scheduled in a way that is least disruptive to the business and adopt a policy that leave be taken during non-work hours.
F. Consider Temporarily Transferring an Employee to Another Position. The employee should be transferred to another position for which they are qualified if intermittent leave would be too disruptive. 29 CFR § 825.204.
G. Properly Track Leave Taken and the Leave Remaining.
1. Be sure to count paid and unpaid leave concurrently. If employees know their leave will be unpaid, they are less likely to abuse the process. 29 CFR § 825.207.
2. Count all increments of intermittent leave in an effort to exhaust the twelve weeks of leave. 29 CFR § 825.205.
a. The employer must account for the leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave. The increment cannot be greater than one hour. Leave must be taken in the smallest unit of time measured by the employer’s payroll system, provided that it is at least one hour. An employee cannot be required to take more FMLA time than he or she needs.
b. However, longer increments can be used if it is physically impossible for an employee using intermittent leave or working a reduced leave schedule to commence or end work mid-way through a shift. The entire period that the employee is forced to be absent can be counted as FMLA leave and counts against the employee's FMLA entitlement. For example, a flight attendant who can’t report mid-flight.
c. Count the leave based on the actual workweek for the employee. 29 CFR § 825.205(b). For example, if a part-time employee usually works 30 hours a week and works 20 hours on a reduced schedule basis, the 10 hours of leave is converted to 1/3 of a week of FMLA leave.
d. If an employee would normally work overtime, but due to intermittent or reduced schedule leave cannot work overtime, the time the employee would have been required to work may be counted against the employee's FMLA entitlement. 29 CFR § 825.205(c).
The time would be pro-rated as above. Voluntary overtime hours cannot be counted, however.
e. If an employee's schedule changes from week to week, the weekly average hours worked over the 12 weeks prior to the beginning of the leave are used to calculate the normal workweek.
f. Count holidays that fall during the FMLA leave taken.
3. Notify the employee of the amount taken when requested or when leave has been exhausted.
a. Ordinarily, the employer must notify the employee of the amount of leave counted against the employee's FMLA leave entitlement at the time leave is designated as FMLA qualifying. But for intermittent leave, because it is not possible to provide the hours, days, or weeks that will be counted against the employee's FMLA leave entitlement, the employer must provide notice of the amount of leave counted against the employee's FMLA leave entitlement upon the request by the employee, but no more often than once in a 30-day period and only if leave was taken in that period.
b. If such notice is oral, it shall be confirmed in writing, no later than the following payday (unless the payday is less than one week after the oral notice, in which case the notice must be no later than the subsequent payday). Such written notice may be in any form, including a notation on the employee's pay stub. 825.300 (d)(6).
H. Dock Pay. The pay of (certain) exempt employees who take intermittent or reduced schedule FMLA leave can be docked without concern of losing the exempt status. 29 CFR 825.206.
1. Where a “white collar” employee meets the specified duties test and is paid on a salaried basis (29 CFR 778.541), the employer may make deductions from the employee's salary for any hours taken as intermittent or reduced schedule leave within a workweek, without affecting the exempt status of the employee.
2. For employees paid on a fluctuating workweek basis for overtime purposes (29 CFR 778.114), during the period in which intermittent or reduced schedule leave is scheduled to be taken, the employer may compensate an employee on an hourly basis and pay only for the hours the employee works, including time and one-half the employee's regular rate for overtime hours.
I. Discipline Employees for Poor Performance or Violating Company Policies. FMLA leave does not excuse poor performance or complying with company policies, such as call-in procedures…unless not practicable.
Case Note: In Sabbrese v. Lowe's Home Centers Inc. a diabetic retail employee was required to eat when his blood sugar fluctuated out of range. The company attempted to accommodate the employee. On a particular day, the employee left his workstation to eat his snack and left the area unattended, resulting in discipline. The court found the employee’s action justified in that "leave taken by a diabetic employee in order to eat to correct low blood sugar when medically necessary may qualify as intermittent leave under the FMLA." Accordingly, "where a diabetic (or otherwise impaired) employee faces a medical emergency and is unable to comply with his employer's break policies . . . a reasonable finder of fact may determine that . . . even if [the employee] violated company policy by leaving [work] . . . he still qualified for FMLA intermittent leave."
J. Communicate, Educate, and Train!
1. Communicate with employees and supervisors to encourage an open atmosphere, similar to the ADA’s interactive process.
2. Communicate with physicians, but only to the extent permitted under the FMLA.
3. Communicate when the Employee calls in.
4. Educate and train employees and supervisors on the company policies and the rights and responsibilities when an employee needs to use intermittent leave.
K. When in doubt, talk to legal counsel.