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Intermittent FMLA

perplexedperplexed 2 Posts
in FMLA/ADA/Workers’ Comp Vote Up0Vote Down
Here's the case: Hourly employee used FMLA last 12 months for spouse's chronic health condition. We use the rolling 12-month period. I have explained to employee that he will accrue FMLA time as used on the anniversary dates of the time used in the last 12 months. Employee has not been back to work since Oct. 12 with his own serious health condition. In short, he is consistently using more than his 12 weeks on a daily basis. Intermittent was used generally as 2 hour blocks of time. What do I do with the remaining six hours of the day and the eight hour days used with no time available? FMLA is the only leave we have available. It gets worse, he is out for an ADA reason.

Our attendance policy allows absences with a doctor's note but does not put a limit on the number of days.

I suspect abuse of his leave last year because of tardies of just a few minutes being explained as doing "something" for his spouse.

We have contacted our corporate lawyer, but have not heard back yet. Just wondering if any of you have had a similar experience.

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  • LindaSLindaS 1,510 Posts
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    IF this condition qualifies him for some type of ADA accomodation you need to get information from the physician regarding the EEs need for time off work. This information would entail more detailed information than what is required for FMLA protection. Once you have the requisite information you need to decide what, if any, accomodations you can make to allow the EE to complete the essential functions of his position. While courts have granted that additional leave MAY be a reasonable accomodation they have also ruled that consistent attendance is an essential function of the position.

    My first step would be to sit down with the EE and inform him that he is out of FMLA protected leave (even though SOME of his time is covered under FMLA) and inform him that he needs to visit his health care provider and provide you with specific information regarding what his needs are under ADA.

    One last thing, before you make any final decision make sure to talk to your attorney.
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