Intermittent FMLA

jmw5455 · December 2002

Is a physician's certification (doctor's note) required for each unscheduled absence from an employee who has requested Intermittent FMLA? Also, if during an Intermittent FMLA leave, an employee is out for a duration of ex: 8 days, are we, the employer, allowed to request a fitness for duty release prior to allowing the employee to return to work?

LindaS · December 2002

In answer to your first question, if the employee has a certified condition that qualifies for FMLA leave and is considered chronic (for example, migranes, the answer is NO you CANNOT request a doctor's slip each time they miss work for that condition. The amount of time I'm talking about is for less than one day or one to two days. I run into this alot with individuals whose conditions act up around holidays and weekends but there isn't anything I can do at this point except require them to update their forms annually.

In response to your second question regarding a more extended period of time off, you CAN ask for a doctor's slip allowing them to return to work. This is something that is typically addressed in an attendance policy. For example, our policy clearly states that an employee who is hospitalized or is off for three or more days must have a doctor's slip releasing them to return to work.

I hope this helps!

Renie · December 2002

I believe you CAN ask for a Dr's excuse for each unscheduled absence for approved FMLA intermittent leave, but it is not an advisable practice.

Terri B · December 2002

If you want to avoid requiring a doctor's note for every absence you can consider having employees update their interrmittent FMLA paperwork more often. I moved to quarterly updates so that I could ensure that employees were still under a doctor's care for the condition. I ran into your type of situation with migraines and endometriosis. It is up to you to decide how long the incremments are for reapplying for the leave. You can set it at 30 days, 90 days, 6 months or a year. Good Luck!!!

vmiller MO · December 2002

29 CFR Section 825.310(g) states, "An employer is not entitled to certification of fitness to return to duty when the employee takes intermittent leave as described in Section 825.203."

Section 825.203(c)(1)states, "Intermittent leave may be taken for a serious health condition. . .and may include leave of periods from an hour or more to several weeks." Section 825.203(d) states, "There is no limit on the size of an increment of leave when an employee takes intermittent leave. . ."

LindaS · December 2002

Thank you for providing that information. I knew I read it and was, just this morning, looking for it.

fsweat · March 2003

If a company can not get temporary coverage for a worker for one or two hours a day due to an FMLA intermittent appmt.; can the company require the employee to take the whole day as a scheduled day off, providing they count only the appointment time as FMLA? Keeping in mind, they have the same requirement of employees that take non FMLA time.

LindaS · March 2003

According to FMLA, there is no size limit regarding the amount of time an employee can take off for intermittent leave. If I'm understanding your policy correctly, if an employee wants only a couple of hours off (for a non FMLA reason) and you cannot cover that time, you require the employee to take the entire day off? Do you require them to use vacation or PTO time? If you do require them to use the paid time, I would suggest you consult with your state FMLA policy (if there is one). Here in Wisconsin, as long as an employee is off for FMLA that is covered under the state law, we cannot require them to use paid leave. Once state runs out and federal kicks in, we can require it.

As long as you require the same things for non FMLA reasons, I don't see any problem with forcing them to take the entire day. I think the key here is consistency. The other option here is to require them to schedule an appointment after work hours (or at least attempt to). Under FMLA, you as the employer have the right to request that any appointments be scheduled outside of working hours as much as possible.

Don D · March 2003

I'm trying to visualize a situation wherein an ee is on true, intermittent leave, duly authorized and approved by the company, which the employer has a right to have, and then the ee says he must be off for a week or longer. That to me seems to be a revocation of intermittent status and the triggering of regular FMLA. In any event of regular FMLA, the company can require an acceptable medical release to return to duty. I haven't seen any intermittents where a doctor might state, "Will need a week or so off periodically." Maybe I'm just lucky. The way I read 825.203, it is describing a reduced leave schedule for a period of time, normally from full time to part time. The careful reading of 825.203 AND 825.310 might just as easily lead one to conclude that a person who enters a period of approved intermittent FMLA, say with a reduced schedule of hours per day or hours per week, who then gains an approval for a period of time extending several weeks, could be required to produce satisfactory evidence of release for return to work. It seems in this event, the certifying information upon which you base the approval has changed enough to ask for a release. 825.203 (c) (1) talks about intermittent leave lasting up to several weeks. Isn't that a contradiction. What's intermittent about that?

Stacy36 · March 2003

Now I am a little concerned about this. We have two pregnant ees one of which misses work occasionally. I can't remember off hand but her doctor wrote a specific diagnosis saying she would occasionally miss due to this. I looked it up and it is basically severe bouts of morning sickness. Should we require a doctor's note for every absence?

Don D · March 2003

No. But be certain that you track each and every absence and apply it to the 480 hour maximum. This can be difficult to track and will take the cooperation of the ee, the supervisor and the HR tracker.

LindaS · March 2003

Don -

My interpretation of intermittent FMLA leave (and I could be way off base) is when a person needs a varying amount of time off and it is taken in less than one large block of time. This may mean shortened days or even several days off in a row, depending on the condition. You bring a good point up, however, regarding release to return to work. I know that if a person is approved for intermittent leave that you cannot request a doctor's release each time a person misses work but what if your attendance policy dictates that, after an absence of three or more days a person must have a doctor's release to return to work? Does this override that portion of FMLA that says you cannot require a doctor's slip when using intermittent FMLA?

We have several employees that have been approved for intermittent FMLA for a variety of conditions. Our attendance policy clearly states that employees must present a doctor's release after an absence of three or more days. These employees have been taking 3 and 4 days off in a week. They are the two biggest abusers of FMLA in the company so I'm wondering if I can require the doctor's slip in keeping with our attendance policy or if FMLA presides.

Don D · March 2003

FMLA bestows no greater privilege on an FMLA ee than one not on FMLA. They do indeed have certain rights protected by the Act. This seems to be a clear contradiction that one of the lawyers might address for us all.

POPEYE · March 2003

The DR's certification should provide a "Possible duration" for intermittent absences. If there is a significant difference in what was certified and what is being used, the way I read 825.308 of the Regs, you may ask for re-certification within the guidelines stated. My understanding of the Law is that you may not envoke any attendance policies including Return to Work authorizations as long as the EE is within the certified and approved time limits for leave.

Stacy36 · March 2003

The certification I have from the ee says the ee suffers from Hyperemesis Gravidarum and will miss work due to this condition. Nowhere did he mention how often she would be out or how long this condition would last, although the ee has stated that she had the same condition with her last pregnancy and that she had it the entire duration of her pregnancy. Should I ask for a clarification as to how often she might miss work?

Don D · March 2003

[font size="1" color="#FF0000"]LAST EDITED ON 03-19-03 AT 03:18PM (CST)[/font][p]You may certainly ask for that clarification. The point is the employer has the final say so with intermittent, it must be agreed to by the employer. Certainly though, it can be worked through. I would start with a discussion with the employee to see if I could reach a comfort level with a guestimate as to how much and how often, based on the fact that she already went through this once. If you hit a brick wall with that attempt, you are at liberty to require additional supporting commentary from the physician. You are trying to pry or roadblock; you're trying to establish a fair and reasonable intermittent leave situation for the employee.

EDIT: OOPS! Big OOPS! I meant to say You are NOT trying to pry or roadblock. I hope you read it that way. My bad.

Stacy36 · March 2003

I thought I could not deny intermittent FMLA if it was medically necessary. She and her doctor both say that when she has these bouts she cannot work. I agree with that but I have no indication as to how often this may happen. Should ask her doctor to estimate how much time she may be off for this condition?

POPEYE · March 2003

Stacy36, The official DOL Certification Form #WH-380 (which we have revised down to one page instead of 4), specifically asks that if leave is to be intermittent give the probable duration. Most of the time we receive great detail from the DR. EX: Leave may be for 1-2 days, 1-2 times per month, or that treatment will be necessary 2 times a month with approximately 2 hours needed for that treatment. Other than that Don D's last post covered it very well.

psrcello · March 2003

Sometimes, we get too much information on the certification forms for intermittent FMLA. For example, and employee brought in a certification that stated that she would likely miss 4 - 8 days per month for her condition. Guess what - that's precisely what she's missed ever since, mostly on Sundays and the days before and after holidays! It's frustrating when employees use intermittent leave as a "carte blanche" to miss work without penalty.

Intermittent FMLA

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