Handling Intermittent Leave (and Not Intermittently Losing Your Mind)

During my webinar last week, I addressed the following question:

An employee is demanding intermittent FMLA for migraines basically whenever she feels like it. How on earth am I supposed to manage that?

As I mentioned, this is a tricky and technical area. I gave you the basics but promised to give you more details. True to my word, here you go.

First, here’s a handy graphic overviewing the process:

So, what’s the answer to the question? Very carefully.

While chronic migraines can be debilitating, they are also near the top of the list of conditions that lead to FMLA abuse. The key is to carefully manage the certification process to ensure you have the info you need to make the right decision.

Incomplete certification

The first step to prevent potential FMLA abuse is to make sure the employee’s physician completely fills out the FMLA certification form. A complete form should provide details on the severity and duration of the illness, the effects on the employee’s job and when intermittent leave will be needed.

If you believe the form is incomplete, you must notify the employee. The notice must state what additional information is needed. Generally, the employer must give the employee seven (7) calendar days to cure the deficiencies unless it’s truly not reasonable under the circumstances. If the deficiencies are not cured within that time period, the employer may deny the FMLA request.

Contact the provider

If you still have questions regarding the form, you may contact the employee’s health care provider to clarify the certification. This should be done by HR — never the employee’s supervisor — and all HIPAA rules should be carefully followed.

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Recertification

If you have good reason to suspect FMLA abuse (e.g., a pattern of Friday/Monday absences, coming in late the same day every week, etc.), you may ask the employee to recertify his/her condition. Generally, an employer may ask an employee for recertification if more than 30 days have passed, with some limited exceptions. Note, though, that if an employer requests recertification, it can’t require a second or third opinion.

Alternatively, the employer may require the employee to obtain a second opinion at the employer’s expense. If a second opinion is requested, the employee is provisionally entitled to FMLA leave during the time required to get the second opinion. If the second opinion doesn’t establish the need for FMLA leave, the leave shouldn’t be designated as FMLA leave and may be treated as paid or unpaid leave under the employer’s other policies.

Third opinion

If the second and first opinions conflict, the employer may require the employee to obtain certification from a third health care provider, at the employer’s expense. The third opinion is final and binding.

The Bottom Line

I hope this helps dispel some of the confusion out there. Again, this is a tricky area and I highly recommend that you discuss the above steps (especially exceptions to the 30-day recertification rule noted above) with your favorite employment lawyer before taking action.

If you have other medical-related questions, we devoted a huge chunk of our webinar to that topic and here’s our latest Employment Law Tool Box which has lots of ADA, FMLA and other tools for your perusal.

This was originally published on Manpower Group’s Employment Blawg.

Mark Toth has served as Manpower Group North America's Chief Legal Officer since 2000. He also serves on the company’s Global Leadership Team, Global Legal Lead Team and North American Lead Team. Mark is recognized as an expert on legal issues affecting the U.S. workplace and is frequently quoted in media from The Wall Street Journal to 60 Minutes. He is also a past Chair of the American Staffing Association and is a certified Senior Professional in Human Resources. Contact him at mark.toth@manpowergroup.com.

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