Ask Rita in HR [1] • By Pamela Fyfe • August 15, 2008 • Email [2] Print [3]

Dear Rita,
One of our exempt employees [4] -- a children’s therapist -- is keeping me up nights by taking unscheduled and intermittent leave under the Family Medical Leave Act (FMLA) [5]. We've been able to plan schedules when other employees have requested either a 3-month leave or regularly scheduled intermittent leave, but this employee has rheumatoid arthritis and she never knows until she wakes up if she will be able to come to work on any particular day. We can’t count on her to keep appointments with our clients. We know that leave under the FMLA is protected, but there must be something we can do without these continuous disruptions to our services. Help!
-- Sleepless

Dear Sleepless,

The administration of intermittent leave can create a headache for the employer. You do have some options and some tools that can help you manage this situation in a way that works better for you and for your ailing employee.

Would a Transfer Help?

First, it's possible that you can transfer her to different duties until she is well enough to work regularly. Employees who need intermittent FMLA leave must attempt to schedule their leave so as not to disrupt the employer's operations. Thus, you may temporarily transfer her to a position in which her unscheduled absences are less troublesome for your nonprofit. The alternate position must have equivalent pay and benefits, but not necessarily equivalent duties.

You must be careful, though, because you may not transfer the employee to an alternate position in order to discourage the employee from taking additional leave. For example, she could not be assigned to perform laborer's work; work a graveyard shift, or to travel to a remote site.

If you do find another position for this employee, she has the right to be placed back in the same or equivalent job as the original job (after she has exhausted her FMLA leave).

You could also reduce her hours, which would allow her to recover in the mornings. You would have to pay her the same equivalent hourly rate as her full-time job and she would enjoy the same benefits, even if you do not offer those benefits to other part-time employees. Of course, group health plan benefits must be maintained on the same basis as if she had been continuously employed during the FMLA leave period. However, you may proportionately reduce benefits such as vacation leave which are based on number of hours worked.

Certification and Re-certification for Intermittent Leave

But before proposing these options, you can require medical certification that the employee has a serious medical condition which requires intermittent leave; create a comprehensive certification form and require recertification every 30 days.  Attach a letter to the certification request, including the employee's attendance record, and ask the doctor whether her arthritis is incapacitating enough to warrant the hours she has been absent. If there is reasonable doubt about the validity of the certification, you can, on your dime, require a second opinion. If the two medical opinions conflict, you and the employee can agree on a third doctor to provide the definitive opinion.

FMLA certification for intermittent leave should include:

• Whether the employee has a serious medical condition
• Date the condition started
• Anticipated duration of the condition/treatment
• Medical necessity/reason for intermittent leave
• Type and duration of intermittent leave required

An employee is entitled to 12 weeks of unpaid medical leave. Did you know that, for purposes of determining the amount of consecutive leave taken, when a holiday occurs during the week, the entire week is counted as a week of FMLA leave, unless you close down for the entire week?

Intermittent leave can be taken in the smallest increment that your nonprofit uses to track time. For example, if your payroll system tracks time off in 10-minute increments, you can designate FMLA time in 10-minute increments. You cannot, however, use a time increment greater than one hour. The FMLA time is time “off the work clock.”  An employee may not be required to take more FMLA leave than necessary. However, you may require the employee to use accrued sick/vacation/personal time off (PTO) benefits unless and until the employee is eligible for some type of disability benefit. For example, in California an employee who is on FMLA leave and who is absent more than eight consecutive days may be eligible for paid family leave or short-term state disability benefits.

Once the employee becomes eligible for a disability benefit, the employee may elect to use sick/vacation/PTO, but may not be required to do so. Herein lies another tool. You can require your employee to use accrued leave for the intermittent FMLA leave, unless and until she is eligible for wage replacement through any disability benefit.

You may also make deductions from this exempt employee's wages for the intermittent FMLA leave that is not covered by her taking paid leave without compromising her exempt status, even if her salary falls below the threshold exempt-salary requirement.

To help you administer FMLA correctly, be sure to follow the steps on our checklist for designation of FMLA leave [6].