We recently received a question from a HR.BLR.com subscriber asking for best practices for handling intermittent leave under the Family and Medical Leave Act (FMLA) and tips for preventing abuse of FMLA. Since this is a topic on which many employers have questions, we decided to post our response as a service to other subscribers. Here it is.

In order to curb FMLA abuse and abuse of intermittent leave, the employer must understand the rights and limits imposed on an employee by FMLA. The following is an explanation of intermittent leave rules under FMLA and some suggested best practices for managing employee intermittent leave.

FMLA leave may be taken “intermittently or on a reduced leave schedule” under certain circumstances. Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason. A reduced leave schedule is a leave schedule that reduces an employee's usual number of working hours per workweek, or hours per workday. Reduced leave schedule is a change in the employee's schedule for a period of time, normally from full-time to part-time. An example of an employee taking leave on a reduced leave schedule is an employee who is recovering from a serious health condition and is not strong enough to work a full-time schedule.

The 2009 final FMLA regulations set forth a number of circumstances under which an employee would be entitled to take intermittent or reduced schedule leave. Those circumstances include:

• Medical need. For intermittent leave or leave on a reduced leave schedule taken because of an employee's or covered family member's own serious health condition, or to care for a covered servicemember with a serious injury or illness, there must be a medical need for leave (as distinguished from voluntary treatments and procedures). In addition, the medical need must be one that is best accommodated through an intermittent or reduced leave schedule.

Leave may be taken intermittently or on a reduced leave schedule when medically necessary for planned and/or unanticipated medical treatment of a serious health condition or of a covered servicemember's serious injury or illness, or for recovery from treatment or recovery from a serious health condition or a covered servicemember's serious injury or illness. It may also be taken to provide care or psychological comfort to a covered family member with a serious health condition or a covered servicemember with a serious injury or illness.

• Periodic treatment by a healthcare provider. Intermittent leave may be taken for an employee's or covered family member's own serious health condition, or a serious injury or illness of a covered servicemember which requires treatment by a health care provider periodically, rather than for one continuous period of time. Examples of intermittent leave would include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of six months, such as for chemotherapy.
• Pregnant employees. A pregnant employee may take leave intermittently for prenatal examinations or for her own condition, such as for periods of severe morning sickness.

Curbing abuse of intermittent leave for pregnant employees can be difficult due to the permissive approach taken by DOL to FMLA leave during pregnancy. A mother is entitled to FMLA leave for incapacity due to pregnancy, for prenatal care, or for her own serious health condition following the birth of the child. Circumstances may require that FMLA leave begin before the actual date of birth of a child. An expectant mother may take FMLA leave before the birth of the child for prenatal care or if her condition makes her unable to work. Some state laws also provide special leave for pregnant employees who are disabled by their pregnancy (e.g., California ).

Under FMLA, a mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from a healthcare provider during the absence, and even if the absence does not last for more than 3 consecutive calendar days. (29 CFR 825.120(4)). A husband is also entitled to FMLA leave if needed to care for his pregnant spouse who is incapacitated, if needed to care for her during her prenatal care, or if needed to care for the spouse following the birth of a child if the spouse has a serious health condition.

Many courts have noted that pregnancy-related conditions are treated differently under the FMLA than other medical conditions, and have declined to require employees to provide medical documentation that morning sickness and other pregnancy-related conditions are incapacitating. However, in cases where the employee's physician specifically states that the employee's morning sickness is not severe enough to prevent her from working, courts have upheld the employer's decision to deny leave. Employers facing requests for leave from pregnant employees should not deny leave if the employee refuses to provide a medical certification. However, in cases where the employee volunteers the certification, and the certification states that the employee can work, it is probably appropriate to deny the leave.

• Chronic serious health conditions/serious illness or injury. Intermittent or reduced schedule leave may be taken for absences where the employee or family member is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition or a serious injury or illness of a covered servicemember, even if he or she does not receive treatment by a health care provider.
• Birth or placement. When leave is taken after the birth of a healthy child or placement of a healthy child for adoption or foster care, an employee may take leave intermittently or on a reduced leave schedule only if the employer agrees. If such an agreement is reached, the employer should document the terms of the intermittent leave in writing, confirmed by date and signature of the employee. The employer's agreement is not required, however, for leave during which the mother has a serious health condition in connection with the birth of her child or if the newborn child has a serious health condition.

If the employer agrees to permit intermittent or reduced schedule leave for the placement for adoption or foster care, the employer may require the employee to transfer temporarily, during the period the intermittent or reduced leave schedule is required, to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee's regular position. See information on temporary transfer, below for details .

• Qualifying exigency. Leave due to a qualifying exigency (family military leave) may be taken on an intermittent or reduced leave schedule basis. This 2008 provision is relatively new and the limits are untested. However, due to the permissive wording of the FMLA regulations, it is anticipated that qualified employees will be granted liberal use of intermittent leave for qualifying exigencies. In order to curb abuse, the employer should obtain documentation of the need for intermittent leave for the qualifying exigency and carefully document all leave taken.

Limits on Intermittent and Reduced Schedule Leave

Reasonable efforts. Employees who take intermittent leave for planned medical treatment have an obligation to make a reasonable effort to schedule such treatment so as to not disrupt unduly the employer's operations. The previous version of the regulations had said only that the employee had to “attempt” to do so.

In order to curb the abuse of intermittent leave, the employer may require that the employee engage in an interactive process of scheduling leave with the employer, including discussing the need for leave and proposed intermittent leave schedules, so as to minimize any disruption of the employer's operations.

Tracking. The 2009 final FMLA regulations changed the way in which employers are required to track intermittent and reduced schedule leave. Under the 2009 FMLA regulations, the employer must account for the leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave. However, the increment of time may not be greater than 1 hour.

In order to curb abuse, the employer should create or obtain a timekeeping system that has the capability to track intermittent leave in the minimum increment and "tag" and tabulate such leave as FMLA/intermittent. Ideally, the system would also notify the employer when the employee's 12 week FMLA leave entitlement is nearly exhausted (e.g., when 3 to 5 days are remaining). In order to properly document all intermittent leave taken, the employer must train supervisors or other timekeepers regarding FMLA eligibility and recordkeeping. An example of such training may be found at http://hr.blr.com/training.aspx?id=15020.

Leave taken. The 2009 final FMLA regulations also clarify that an employee's FMLA leave entitlement may not be reduced by more than the amount of leave actually taken. So, for example, if an employee leaves during the last half-hour of his or her shift for an FMLA-covered event, the employee may not be "docked" a full hour of FMLA leave (even if this is the shortest period of time that the employer uses to account for use of other forms of leave). (29 CFR Sec. 825. 205)

Physically inaccessible workplaces. The FMLA regulations place a limit on intermittent leave when it is physically impossible for an employee using intermittent leave or working a reduced leave schedule to commence or end work mid-way through a shift. This might occur in situations such as when a flight attendant or a railroad conductor is scheduled to work aboard an airplane or train, or a laboratory employee is unable to enter or leave a sealed “clean room'' during a certain period of time. In these situations, the regulations say that the entire period that the employee is forced to be absent is designated as FMLA leave and counts against the employee's FMLA entitlement. This exception is applied narrowly, and only when an employee is physically unable to enter worksite midshift.

One of the most powerful tools for managing intermittent leave and controlling abuse is the initial certification of such leave. In order to manage intermittent leave, we suggest that supervisors or other individuals charged with managing leave be vigilant in requiring that the employee requesting intermittent leave provide certification of the specific need for intermittent leave. The DOL's medical certification form (found at http://hr.blr.com/timesavers.aspx?id=79286) enables the employer to specifically ask the employee's healthcare provider about:

• Intermittent/reduced schedule leave for planned treatment, and why there is medical necessity for leave and estimate of dates and duration of treatment/recovery periods;
• Likelihood of unforeseeable episodes of incapacity, why there is medical necessity for leave and estimate of frequency and duration of episodes of incapacity.
• Continuing treatment, the schedule of such treatment, whether episodic flare-ups are anticipated, the frequency of those flare-ups and whether the employee will be absent from work during those flare-ups.
• The medical certification form specifically instructs the healthcare provider to:

"Answer, fully and completely, all applicable parts. Several questions seek a response as to the frequency or duration of a condition, treatment, etc. Your answer should be your best estimate based upon your medical knowledge, experience, and examination of the patient. Be as specific as you can; terms such as “lifetime,” “unknown,” or “indeterminate” may not be sufficient to determine FMLA coverage. Limit your responses to the condition for which the employee is seeking leave."

As a result, the healthcare practitioner is forced by the DOL's certification form to estimate the frequency and duration of the condition in terms of times per week or month, and hours or days per episode. Answers of an indeterminate nature may be deemed insufficient and require the employee to cure certification. For more information, see "Authentication and Clarification of Medical Certification" in the FMLA topic discussion at http://hr.blr.com/topics.aspx?topic=98

Note that if an employer is going to require medical certifications, it is required to provide the employee with written notice of such a requirement, and the consequences of failing to provide requested medical certification. This notice may be given in the form of the DOL's Notice of Eligibility and Rights & Responsibilities (Form WH-381, Part B), or a similar document provided by the employer.

Temporary Transfer During Reduced Leave Schedule or Intermittent Leave

It is important to point out that employers are given a little more leeway with job transfers during foreseeable reduced leave schedule and intermittent leave than they are with respect to employees returning from regular leave. With the returning employee, the employer is obligated to provide the same position or a position that is equivalent in “pay, benefits, and duties.”

Although transfer to a temporary position during intermittent FMLA leave may not assist an employer in curbing the abuse of intermittent FMLA leave, it can help an employer minimize the disruption on the employer's operation. Therefore, we include a discussion of the rules/best practices pertaining to temporary transfer.

Available alternate positions. During a period when intermittent or reduced leave schedule is required, an employer may require an employee to transfer temporarily, to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee's regular position. Unlike a “light duty” assignment, a transfer to an alternative position does not require the employee's consent. Transfer to an alternative position may include altering an existing job to better accommodate the employee's need for intermittent or reduced schedule leave.

The employer may require a temporary transfer if an employee needs intermittent leave or leave on a reduced leave schedule that is foreseeable based on planned medical treatment for the employee, a family member, or a covered servicemember, or if the employer agrees to permit intermittent or reduced schedule leave for the birth of a child, adoption or foster care.

Transfer to an alternative position may require compliance with any applicable collective bargaining agreement, federal law (such as the ADA ), and state law.

The alternative position must have equivalent pay and benefits, but does not have to have equivalent duties. The employer may increase the pay and benefits of an existing alternative position, so as to make them equivalent to the pay and benefits of the employee's regular job.

The employer may also transfer the employee to a part-time job with the same hourly rate of pay and benefits, provided the employee is not required to take more leave than is medically necessary. For example, an employee desiring to take leave in increments of four hours per day could be transferred to a half-time job, or could remain in the employee's same job on a part-time schedule, paying the same hourly rate as the employee's previous job and enjoying the same benefits.

The employer may not eliminate benefits which otherwise would not be provided to part-time employees; however, an employer may proportionately reduce benefits (e.g., vacation leave) where an employer's normal practice is to base such benefits on the number of hours worked.

When an employee who is taking leave intermittently or on a reduced leave schedule and has been transferred to an alternative position no longer needs to continue on leave and is able to return to full-time work, the employee must be placed in the same or equivalent job as the job he or she left when the leave commenced. An employee may not be required to take more leave than necessary to address the circumstance that precipitated the need for leave.

An employer may not transfer an employee to an alternative position in order to discourage the employee from taking leave or otherwise work a hardship on the employee. For example, a white collar employee may not be assigned to perform laborer's work, or an employee working the day shift may not be reassigned to the graveyard shift. Any such attempt on the part of the employer to make such a transfer will be deemed a violation of the FMLA.

Transferring an employee while on reduced leave is not permissible when it violates any applicable collective bargaining agreement, ADA , or state law. Employers should review any applicable collective bargaining agreement carefully before implementing a transfer.

Language to Incorporate Into a Policy to Empower HR and/or Supervisors Managing FMLA Intermittent Leave

As mentioned above, one of the most powerful tools in curbing intermittent FMLA leave abuse is the use of the medical certification form. Therefore, a strongly worded medical certification policy will empower HR and/or supervisors managing FMLA intermittent leave. Here's an example of such a medical certification policy on HR.BLR.com.

In addition, the employer should establish reasonable and compliant employee notice requirements for all types of FMLA leave (foreseeable and unforeseeable). The 2009 FMLA regulations place specific limitations on employee notice requirements. A discussion of these requirements is included in the FMLA topic discussion on BLR's HR website at http://hr.blr.com/analysis.aspx?topic=98 (under header: “Employee's Notice Requirements"). A portion of that discussion pertaining to unforeseeable/intermittent leave is included in this response, below.

For unforeseeable leave with no unusual circumstances, employees must provide notice of leave according to an employer's usual and customary notice requirements for such leave. For example, an employer may require employees to call a designated number or a specific individual to request leave. However, if an employee requires emergency medical treatment, he or she would not be required to follow the call-in procedure until his or her condition is stabilized, and he or she has access to, and is able to use, a phone. Similarly, in the case of an emergency requiring leave because of a FMLA-qualifying reason (e.g., a family member's or an employee's own serious health condition, a qualifying exigency, or to care for a covered servicemember with a serious injury or illness), written advance notice pursuant to an employer's internal rules and procedures may not be required when FMLA leave is involved.