Best Practices for Managing Intermittent Leave

Intermittent leave helps employees manage a serious health condition for themselves or someone in their family. While essential for employees, it’s a huge challenge for HR departments, particularly those at smaller companies that have fewer resources.

The significant administrative burden of intermittent leave may feel overwhelming, but thoughtful planning, clear and consistent expectations, and an investment in training for managers and other frontline staff will make it much easier.

What is intermittent leave?

Intermittent leave is often used by employees who have a chronic condition to manage — such as migraines or asthma, where flare-ups are common but not constant. It may be taken as needed for just a few days a month or just a few hours a week — for example, when an employee needs to see a doctor to get regular treatments.

It can also be taken to care for a family member with a serious health condition, or to deal with issues related to the deployment of a family member in the military. The law does not require employers to offer intermittent leave for bonding with a new child, but many may opt to do so.

The challenges of intermittent leave for employers

Intermittent leave requires constant monitoring and documentation. Employers must:

Document why an employee needs to take intermittent leave, with certification from a doctor if necessary
Track the amount of time taken for intermittent leave, in increments down to the minute
Distinguish between time taken for intermittent leave and regular sick time and vacation: In a 12-month period, an employee is entitled to use their entire 12-week bank of FMLA time for intermittent leave

Best practices for managing intermittent leave

1. Create a clear and thorough FMLA policy

A good strategy for managing intermittent leaves begins with a clear and thorough policy. Your policy should include:

The process and requirements for determining eligibility (including the medical certification process, if necessary) and the expectations of any employee taking intermittent leave
A call-in process for employees who need to take leave with very specific guidelines, e.g., “Call in one hour before your shift begins” rather than something more general
A standard Leave Request Form
An anti-fraud provision

Armed with these clear policies and documents, your HR professionals, managers and the employees requesting leave will be better informed about requirements and the process will go more smoothly.

Scenario: When clear expectations have not been set

Kevin is entitled to three days of intermittent leave a month to manage a chronic condition. But Kevin regularly goes over his allotted leave time, takes leave on Fridays or on days he had previously requested — and been denied — for vacation.

What should an employer do? The employer has the option to go through a recertification process because the absences are beyond what was approved. The employer also may have the option to consider an investigation into possible fraudulent use of FMLA time. If the employer chooses the investigation before making any employment decisions about Kevin, the employer should also interview Kevin.

2. Protect yourself from the outset to avoid problems later

Getting complete information at the outset and setting clear expectations before an employee takes leave can prevent problems down the road. In our recent webinar, Jeff Nowak, shareholder at Littler Mendelson — the largest employment law practice in the world representing employers — and author of the highly regarded FMLA Insights blog, spoke about the importance of the medical certification process.

He says, “Medical certification is a key tool in preventing the misuse of FMLA, so send that certification out, along with the proper notices. Follow up if an employee has not turned it in.”

Once the leave has been approved, schedule an “expectations” meeting with the employee. At this meeting, a member of the HR staff walks the employee through the FMLA policy and gives them a written copy to take home.

3. Don’t be afraid to ask questions

Employers are understandably sensitive when it comes to intermittent leave. They want to respect the privacy of their employees during a difficult time and not pry into health or family life.

“There’s often a concern about ‘What can we ask of employees? Can we really delve into medical conditions? Isn’t that protected under HIPAA’?” says Nowak.

Despite these legitimate concerns, he says that employers do have the right to be broadly informed about why an employee will be absent.

“Whether that’s for a medical issue, or for a flat tire, or because they’ve got to pick their kid up from school, you have a right to know why an employee can’t come in,” he says. “Don’t be afraid to ask these basic questions.”

4. Invest in education for managers

Managers are often on the frontlines of managing leave for employees so it’s crucial they are well trained.

“Let’s say it’s your policy for the manager to take the phone call from an employee who’s unable to come in,” says Nowak. ”But that manager hasn’t been trained. They are putting you on the hook for potential FMLA liability.”

An informed manager should know:

What types of situations are covered under FMLA and how to identify if an employee may need intermittent leave; whom to notify when an employee requests leave
What questions to ask an employee who is requesting leave or taking approved intermittent leave time and how to document that appropriately
What patterns or red flags to look for if an employee is suspected of misusing intermittent leave

Investing in FMLA-specific onboarding for new managers or creating detailed FAQs to guide them in their interactions with their employees is a cost-effective way to protect yourself from the possibility of misuse and shield your company from liability.

Scenario: When a manager hasn’t been trained

Arthur calls into his manager, Rick, to tell him he needs to take his mother to the ER. Rick documents the reason as “sick mom,” which isn’t covered under FMLA. Arthur is terminated and later sues.

What should an employer do? It’s prudent to identify a point person for employee call-ins, whether that’s a manager or a member of HR. That person should have extensive training on documenting FMLA leave to prevent issues like this.

5. Monitor for misuse, but be fair and thorough before taking disciplinary action or pursuing recertification

With these policies and procedures in place, misuse of intermittent leave is less likely. Nonetheless, employers should remain alert but prudent.

Nowak advises against using recertification unless the behavior raises objective concerns and is clearly documented.

“Be wary of recertifying in an instance where someone has gone one over their allotted frequency – for instance, they are approved for two days, but they take three,” he says. “I am looking for some other objective basis — for instance, a pattern of absences on Mondays and Fridays — before I recertify.”

To take any disciplinary action for the fraudulent use of FMLA, employers must first conduct a thorough and fair investigation. These investigations are crucial to avoiding unnecessary terminations, as well as possible lawsuits.

Scenario: When the case for dismissal seems ironclad

An employee out on intermittent leave is seen at a bar. He posts a picture of himself on Facebook.

What should an employer do? Conduct a thorough investigation. Even when a case of potential fraud seems like a slam-dunk, it’s still important to consider context and examine other evidence before taking disciplinary action.

Conclusion

By developing clear and consistent policies around intermittent leave, and maintaining open communication with employees, employers can protect themselves from legal exposure and ensure their workers are able to care for themselves and their families while still contributing to the workplace.

For more information, view our complete webinar on managing intermittent leave.

Five keys to managing intermittent leave – including common scenarios