Abuse of Intermittent

I have an employee that has intermittent FML for respitory issues. They had a flare-up and was out 3 weeks; came back with a return to work note stating they were able to return full time. I have paperwork stating they might need intermittent for occasional flare-ups 1 time every 3 months (up to 10 days). they have missed 6 times this month, stating FML but the most resent was a sinus infection. I have sent a letter to the physician showing the days missed and asking for clarification to see if this pattern of absence is in line with the original documentation. They missed Wed - Fri last week. Called in Wed afternoon stating they would be back on Thursday and then calls in Thur and Fri. Brought in a note this morning stating they can only work 32 hours a week. They are in a key position in our medical clinics 40 hours a week. Any thoughts on how to handle this? Thanks.


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  • No real thoughts on how to handle it - I'm in the midst of a possible abuse of Intermittent Leave myself. I would though caution you on how you define a key position, especially if you are considering this grounds for not allowing the employee to return from the granted FMLA.
    I site the EEOC and the definition of Key Employee...


    More specifically:
    As an exception to the FMLA's general guarantee of reinstatement, an employer may deny reinstatement (but may not deny leave) to a "key" employee if restoration would cause "substantial and grievous economic injury," provided certain conditions are met. 29 C.F.R. § 825.216(c). A "key" employee is "a salaried FMLA-eligible employee who is among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee's worksite." Id. at § 825.217. The FMLA's "substantial and grievous economic injury" standard is different from and more stringent than the "undue hardship" test under the ADA.

    Also, remember the ADA:
    Q: How do the ADA and the FMLA requirements compare regarding intermittent or occasional leave?

    A: Under the ADA, a qualified individual with a disability may work part-time in his/her current
    position, or occasionally take time off, as a reasonable accommodation if it would not impose an
    undue hardship on the employer. If (or when) reduced hours create an undue hardship in the current position, the employer must see if there is a vacant, equivalent position for which the employee is
    qualified and to which the employee can be reassigned without undue hardship while working a reduced schedule. If an equivalent position is not available, the employer must look for a vacant
    position at a lower level for which the employee is qualified. Continued accommodation is not required if a vacant position at a lower level is also unavailable.
  • tteater,

    Your first post! Welcome to the Forum.


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