Intermittent FMLA - ABUSE

HRVolley

I know this topic has been discussed at great length, but I am having trouble finding an answer to this specific question.
Scenario: Employee has approved intermittent FMLA for her son who has cronic asthma. Employee supplied recertification from her son's DR. in April, so the leave was again approved. Her use had been pretty infrequent, a full day once a month. During the month of May and June 2007, she has called in once or twice a week, every week!! Can I address this sudden change in her FMLA use. Can I nicely inform her that this recent increased use of intermittent FMLA might deem her absences a burden for her department, and she might be moved somewhere with lesser pay and more flexibility in her schedule. Any thoughts??!! Am I correct in my understanding of a burden with Intermittent FMLA?

LindaS

Let be begin by stating that if you make the above statements to the EE, I would almost guarantee that you would be slapped with a formal complaint. You are INCORRECT in your understanding of intermittent FMLA and the burden placed on employers.

When the regs. speak of "burden" they are referring to PLANNED treatments, not the unplanned, unscheduled absences as you have outlined above. The FMLA is about granting eligible EEs time off work WITHOUT RETALIATION OR PUNISHMENT due to, among other things, a serious health condition of an immediate family member. Telling an EE that she will be moved to a job with lesser pay and less flexibility is CERTAINLY RETALIATION.

What you can/should do is first look at the original certification. What does it say? Does it state the frequency of absences? You have the right to require updated medical certification once every 30 days, if necessary. In this instance, since the amount of time missed has significantly increased from before and more than 30 days have passed, you can require re-certification.

What I have done in the past is provide the EE, in writing, the request for re-certification as well as a copy of their attendance record. I inform the EE that they are required to be re-certified verifying the amount of leave they have taken. Sometimes it works that the doctor is more specific, sometimes not but at least you have tried.

GOod luck.

System

[font size="1" color="#FF0000"]LAST EDITED ON 06-28-07 AT 04:25PM (CST)[/font][br][br]It's not clear what your reasons are for thinking the employee is abusing rather than simply using intermittent FMLA, other than the jump in absences itself. I'm no doctor, but my son does have mild asthma, and the spring season often triggers allergies that in turn trigger asthma flare-ups. Something to consider as you assess the situation, at any rate.

Jennifer Alvey
Group Publisher, Worker's Comp
M. Lee Smith Publishers

HRVolley

Thank you for the clarification. The burden on the company is something I was having trouble determining. And just to clarify my original points. If it should come to it, I would not offer a job with less money and "less" flexibility. I would try to offer "more" flexibility as I stated originally. Unfortunately, those more flexible jobs pay less in my organization.

I am also hesitant to ask for recert as you suggested because I have requested it just this past April. Is it still appropriate to ask now with the increased usage?

The April recert states, "occasional incapacity", and that is as specific as it gets.

And again, I am not trying to penalize the ee for having a child with asthma, and we will of course accommodate. But, this is an ee with serious attendance issues. One Friday she will call in sick for her own “illness” and the next she will call in for her son's illness, calling for FMLA.

Just a bit frustrating to the management (who ask me every time she states FMLA why we can’t take her out of her position) and other ee’s who tell me they think she gets to do whatever she wants.

Thanks for the help!

HRinGA

I would ask for recert. Monday is July and you haven't had one since April. That's plenty of time. Intermittent FML is so hard b/c of reasons you just cited. It's disruptive to the work flow, but we do what we have to do.