Ask Rita: Can Staff Come and Go Using Family or Medical Leave?

The administration of intermittent leave can create a headache for employers.

Dear Rita,

One of our exempt employees — a children’s therapist — is keeping me up nights by taking unscheduled and intermittent leave under the Family Medical Leave Act (FMLA). 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!

Signed,
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.

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About the Author

Pamela Fyfe

Pamela Fyfe is an Employment Risk Manager for the Nonprofits Insurance Alliance. In her position she helps nonprofits avoid potential employment claims and reduce the possibility of future claims. Before joining the Nonprofits Insurance Alliance Group, she practiced employment law for more than 25 years — representing management in wrongful termination, discrimination and sexual harassment cases. She admits to possibly having sneaked online at work to see her first grandchild — Mara Adeline — who lives in London.

4 thoughts on “Ask Rita: Can an Employee Come and Go Using Family or Medical Leave?”

My wife, a physician, worked as a medical director for a large managed care company for almost 5 years. Her own mother, who lives out of state, has had progressive dementia. When it worsened to the point of requiring assistance beyond the home aid she was receiving, my wife requested and was granted 12 weeks of unpaid leave under the FMLA. She helped her mother and elderly father during this period.

She did everything by the rules, did not take advantage of the company, gave them sufficient notice, worked through the company’s HR, and returned to work exactly as planned. She had never taken leave before and was not a “problem” employee. Her reward by her company was that shortly after she returned to work 12 weeks later, she was informed that her position was being eliminated. This was a carefully choreographed retaliation against my wife, who loyally worked hard and dilligently at her position.

She discussed her situation with a highy regarded labor law attorney who advised her not to sue the company. There is no justice for the “little guy” when dealing with corporate goliaths.

This must be difficult for you and for your employee, because of her special heath condition I think she should also have some special workers benefits. If you can’t count on her to schedule the appointments don’t have her do that. This is a delicate situation and I don’t think transfer would help much…
Kurt, Payroll Services

Yeah, you don’t have too many legal options at the moment… Looking at a brighter side you have to realize that things won’t go like this forever. I guess that employee of yours is out of the rewards program.

I believe the best way to reduce these situations is to be prepared. Of the several non-profits I’ve been involved with, situations like this arose least often, and were handled most easily, at an organization that actually had a no-limit sick policy (read, "if you’re sick; you’re sick"). But what this organization also had was a wonderful, comprehensive, easily understood personnel manual that was given to every employee, and included all the HR policies.

This organization’s PTO/TO policies were very generous (3 weeks’ paid vacation, 10 holidays, 6-weeks’ paid maternity leave, paid adoption benefits, paid paternity leave, paid bereavement etc. etc.), and every employee also understood exactly what documentation was required (and it was significant) for anything besides occasional, full-day, sick time of less than 4-days.

Basically, this employer just used all its legal rights (for example, as described in this article) as the basis for its policies, and outlined those for all employees to know in advance.

When a situation arose where someone needed FMLA, short- or long-term disability, or whatever, it was a relief to know that your employer was going to stand behind you, and that it was clear what documentation you’d have to provide. And there was not any pressure against taking time off when it was needed. And for what it’s worth, I can only surmise that, conversely, if an employee ever thought about pushing the boundaries of legitimate use of sick time and/or leave, that employee was pre-empted by the prospect of having his or her claim examined closely by an employer that thoroughly understood the obligations of all parties involved.

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