Intermittent FMLA

Gary Behling

We have numerous employees who use intermittent FMLA. One example that I have is an employee who was granted leave due to "depression". Many times when he is given an assignment or has a confrontation with a supervisor he tells them he is going home because he is under too much stress. He later claims this is covered under the FMLA leave that he was granted.
My question is: Must the employee tell us when he is leaving that this is FMLA leave or can he just say "I am stressed out and going home due to the stress" ?

I really don't want this to expand to other employees and would like some help on this. Any ideas or comments?

Don D

FMLA is not a free ticket to ride as it seems your employee might think it is. Intermittent is defined and charted, insofar as possible, in advance and must be approved by the employer, meaning it can't necessarily be had on demand. A person suffering from depression is typically also concurrently covered by ADA, so I understand. This one calls for a quick no-frills call to the company labor attorney. You don't want to jack people around who have such protections without the advice of counsel.

morrisg

Why would you not require the employee to provide you with medical evidence that his intermittent leave is a required medical condition? If he can't provide that to you then I would not excuse his leave under FMLA. If the physician says, "sure he needs to leave anytime he feels like it", a basic requirement of ADA is to meet the essential functions of the job and coming to work and staying on the job is certainly an essential function

Don D

However, if the medical certification (which in such sensitive instances is going to absolutely be intentionally vague because the man values his license to practice) states that the employee's medical condition is exacerbated by X and Y that tend to trigger anxiety and periodic feelings of uselessness and will necessitate brief, periodic half-day periods of absence from work, there you have the situation to which the poster aludes, and which might qualify one for intermittent FML absences or an ADA reasonable accommodation, depending on the circumstances and all of the facts. No matter how much we as HR people might wish to control events and behaviors, it can be a bad day at black rock when one of us decides to challenge, mess with or try to override what might clearly be an employee's right to the protections of FMLA or the ADA. Plaintiff's attorneys attend at least 36 hours of pit-bull courses using HR dummies, stuffed with cotton balls, as examples on the stand. Nobody hates being taken advantage of more than I; but, in some things I proceed always with caution.

Gary Behling

This employee was approved for intermittent leave due to "depression". His doctor states on the Certification from the Health Care Provider that it is a chronic condition that requires periodic treatment every one to 6 months. He also states that the periods of incapacity may require 1 to 3 days off periodically.

The employee has not taken full days off but it seems he comes to work for three hours and then goes home claiming that he is stressed.

I appreciate all of the input and feedback. Thanks again.

System

You might want to require the employee to get the doctor to clarify the certification because it doesn't seem to cover these situations. For example, can depression suddenly pop up in these situations? And how can you tell if it's really justified?

Good luck. This is a really sticky situation.

James Sokolowski
Senior Editor
M. Lee Smith Publishers