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Presagia’s FMLA Intermittent Leave Guide

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Table of Contents

Introduction ......................................................................................................................................................... 3

Why Is It So Complicated? ................................................................................................................................... 4

Different faces of intermittent leave ............................................................................................................... 4

By Certification Types ...................................................................................................................................... 5

By Medical Condition Type .............................................................................................................................. 5

By Absence Duration Type ............................................................................................................................... 6

The Basics: What Is It? Who Gets It? ................................................................................................................... 6

Rights and Obligations ..................................................................................................................................... 7

Accurately Administering Leave and Discouraging Abuse ................................................................................... 9

A Compliant Leave Program............................................................................................................................... 11

NOTICE

Copyright Presagia 2013. All rights reserved.

Presagia is a registered trademark. The Presagia logo is a trademark of Presagia Corp. Other trademarks

identified in this document are the property of their respective owners.

Information provided within this guide is not intended to be used as legal guidance. Presagia maintains that

legal counsel should always be consulted when considering or implementing changes to the leave processes

and policies.

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Introduction

Long time employee, Sophia has requested intermittent leave under the Family and Medical Leave Act

(FMLA) for her anxiety. Matthew is going to need some intermittent leave for his allergies which become

disabling in the spring. Dave has also applied for intermittent leave due to of his asthma attacks and Chloe is

looking for intermittent leave time to bond with her newborn. With so many variations of what intermittent

leave can look like and mean, it’s not surprising that properly tracking and managing intermittent leave has

become one of the biggest pain points for FMLA eligible employers.

While the FMLA was enacted 20 years ago, employers still struggle today to properly administer it. An

already complex piece of legislation, the FMLA has further challenged employers with the option of

intermittent leave. Unlike most other leaves that are taken in a continuous block of time, intermittent leave

can take on many forms and is largely open ended, sometimes extending for years. In order for an employee

to qualify for intermittent leave, they must show that the need for leave is “medically necessary,” but how

do you accurately evaluate medical certifications? If a submission comes back incomplete or with insufficient

information how do you handle it? Which is the best method to ensure the right information is included

when recording absences to quickly and correctly designate them? In which increment of time should you be

tracking your intermittent leaves?

The purpose of this whitepaper is to:

Overview intermittent leave and its different faces

Highlight some key employer rights and obligations

Outline how to take control and discourage employee abuse

Examine what a compliant leave program should look like

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Why Is It So Complicated?

Intermittent leave by its very nature is unpredictable and complications come from many sources. The fact

that employees can have multiple FMLA cases open at the same time is one of the greatest causes for the

Act’s complexity. For example, someone who has been approved for intermittent leave for diabetes can then

also be approved for depression, providing them time off once a week for appointments with their

psychologist. Another employee, approved for intermittent leave for severe migraines might become injured

and eligible for continuous leave. As long as the employee has not exhausted their FMLA entitlement, a

single employee can have one, two, three or more cases open at any given time.

A common mistake that employers make is expecting that the collection of absence data alone will suffice

for leave management. Absence data is useful for calculating leave entitlement but not for the broader

issues of leave program participation, eligibility or applicability of leave laws to the absence reason. Absence

data is reactive and collected after your employee is already on leave. Compliance elements such as who the

leave is for, a detailed absence reason, whether it represents a new or existing leave and more are missing

from this model and can seriously impact your ability to meet compliance targets. If your absence code only

says “FMLA,” how do you know which leave case to designate the absence to? So while you’re collecting

enough information for pay, major compliance targets are being overlooked.

Employers also often lack the proper communication channels to ensure the leave team receives the

information they need in time to respond accurately to leave events, meaning that the right information is

often not reaching the leave team on time or even at all. Compliance driven programs are most successful

when a properly trained leave team manages and monitors participation in leave programs and has visibility

into absence reporting to match these events to leave programs. We will discuss these and other issues

further in this whitepaper.

Different faces of intermittent leave

To be deemed “medically necessary,” an absence reason must meet the requirements of what is considered

a “serious health condition,” which under the FMLA is defined as an illness, injury, impairment or physical or

mental condition that involves inpatient care or continuing treatment. Due to the breadth of what

constitutes a serious health condition for intermittent leaves, it is often difficult to determine if an

intermittent absence is FMLA qualifying. Often this is exacerbated by employers trying to use their time and

attendance data to identify FMLA intermittent leaves when in fact this data often lacks the necessary depth.

However, the first step to solving any problem is knowing what you’re dealing with. Intermittent leave can

be categorized by certification type, by medical condition type, and by absence duration.

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Events Outside Certification Parameters This is a situation where an employee has an approved intermittent leave, but the frequency, duration, or

both, vary widely from the certified frequency and duration. These situations are extremely difficult to monitor without the assistance of a strong process and appropriate technology; under these

circumstances it is absolutely acceptable for an employer to request recertification.

By Certification Types

1. Certified – Predictable Leave

An employee requests intermittent leave in advance and it is approved and thus scheduled for a

foreseeable event. This is a best case scenario for employers as it is straightforward and can be planned

around. An example of this would be scheduled appointments or follow ups for a known and existing

medical condition.

2. Certified – Unpredictable Leave

Related to an unpredictable but certified health condition where the condition is not always predictable

but for which typical frequency and duration are generally known for example, severe morning sickness.

3. Uncertified – Unexpected Absence

Essentially a no-show kind of situation in which the employee is not expected or certified to miss work,

but does so anyway and claims intermittent leave as the reason. Even if this kind of absence is related to

a serious health condition that qualifies, the employee is obligated to request and certify the leave

before an employer is obligated to extend the protection of the Act to those absences.

By Medical Condition Type

1. Serious health conditions of a chronic and ongoing nature

Chronic and ongoing conditions may generate absences that are predictable (as in regularly scheduled

dialysis treatments) or unpredictable (asthma or diabetes). In this case there is a regularly recurring need

for leave for a known and ongoing medical condition that the employee will have to deal with on a

continual basis for an indefinite period of time.

2. Serious health conditions requiring periodic treatment

Conditions in this category generally include temporary medical conditions for which the treatments are

specific and recovery is likely. Both predictable and unpredictable absences may result from these

conditions as well.

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Reduced Schedule Leave Instead of taking time off for appointments, or as the need arises for different medical conditions, another option is to place an employee on a reduced schedule. This reduces the hours worked by day or per week,

for example switching an employee from full to part time for a period of time. An employer may still designate the time an employee is absent for the portion of the workday for which they are not working.

3. Serious health conditions of an episodic nature

Conditions in this category almost always generate absences of an unpredictable nature. Although the

frequency and duration are generally known, the events are often unpredictable. The condition may be

either temporary or of a longer term duration.

By Absence Duration Type

1. Full day absences

Time is designated against the employee’s workweek for each full day of absence until exhausted.

2. Partial day absences

Only the actual time used for the absence can be booked against the employee, absent unusual

circumstances.

The Basics: What Is It? Who Gets It?

FMLA leave can be taken intermittently in day, hour and even minute increments and an employee who has

been approved for intermittent leave may take leave without notice in certain circumstances. As previously

mentioned, intermittent leaves must be medically necessary in order to be approved. Initial medical

certifications should support the medical necessity of the leave and employers are also entitled to

information on the expected frequency and duration of the periods of incapacity.

The basics of intermittent FMLA are the same as FMLA for continuous leave: eligible employees may take up

to 12 weeks of unpaid job protected leave in any 12 month period or up to 26 weeks to care for an injured

servicemember. For more detailed information regarding eligibility, entitlement and medical certification

requirements, download Presagia’s FMLA Guide at www.presagia.com/FMLAguide.

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Rights and Obligations

Employers who want to properly and compliantly administer

intermittent leave must be aware of their rights and obligations

during the process.

Initial Request and Correspondence

When an employee requests any form of leave, it is obligatory that

employers fully assess the right to FMLA leave. Employers must then

inform the employee of their rights and responsibilities while

outlining any applicable company policies. In this preliminary

eligibility notice the following must be included:

If the employee is required to provide medical certification

The 12-month period used – employers have the right to choose

this and may select the calendar year, a rolling 12-month period,

any fixed 12-month “leave year” such as a fiscal year or the

period measured from when the employee’s FMLA leave begins

The company policy regarding the right or requirement to

substitute accrued paid leave

If the employee is required to pay health care premiums to

maintain benefits

If a fitness for duty or medical release form must be obtained to

return to work

The FMLA’s job protection guarantee but also the consequences

of not returning to work

Medical Certification

An employer can require an employee wishing to take intermittent leave to submit a medical certification

from their healthcare provider confirming the medical necessity of the intermittent nature of the leave, as

well as the frequency and duration of the leave episodes required. The employer generally has five business

days from the time they receive the completed medical certification to determine whether it supports the

need for intermittent leave and to advise the employee of the determination.

Employers can choose to request a second opinion if the information provided is insufficient or there is a

reason to doubt the original evaluation. While you may request a second opinion from the healthcare

provider of your choice, it is at the employer’s expense, not the employee’s. If the first and second

evaluations differ, a third opinion may be requested, also at the employer’s expense.

FMLA Doesn’t Live Alone

You must also remember that

employer obligations may exist

under the ADA even if there are

no FMLA obligations. Under

the ADA, leave and flexible or

even part-time work schedules

may be required as a

reasonable accommodation if

they do not pose an undue

hardship to the business. The

key to ADA reasonable

accommodation cases is an

effective and interactive

process to explore potential

accommodations.

The ADA Amendments Act

(ADAAA) of 2008 dramatically

expanded the ADA’s definition

of “disability” resulting in even

more temporarily disabling

conditions now triggering

accommodation obligations.

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Employers must clearly post and display employees’ FMLA rights and responsibilities. The DOL offers free

posters, available in English or Spanish, at www.dol.gov/whd/regs/compliance/posters/fmla.htm.

Be sure to include FMLA policies in employee handbooks as well. These should be provided upon hiring

and redistributed whenever changes are made to the legislation itself or company policies.

Advance Notice

As with continuous FMLA leave, employers have the right to enforce that advance notice of the need for

leave be given by the employee. If the intermittent leave is foreseeable, the employee must generally

comply with your company’s notice policies for requesting leave, but employers cannot require more than

30 days’ advance notice. Absent extenuating circumstances, employers may choose to delay the granting of

leave to meet the typical notice requirements or deny the leave.

Where the need for leave is unforeseeable, employers can require that employees must provide notice as

soon as possible and practical, taking into account the circumstances of the situation. In this case, it is

generally accepted that it should be realistic for an employee to provide notice of the need for leave either

the same day or the next business day after becoming aware of it.

Recertification and Monitoring

Employers also have the right to require employees on intermittent leave, for chronic and ongoing

conditions, to see their doctor at least twice a year for recertification. If the nature of the absences start to

vary before the six month period, an extension is requested, the frequency changes or there is suspected

abuse, you may request the recertification sooner, but no more often than every 30 days.

Reinstatement

If an employee on intermittent leave holds a position where taking intermittent leave disrupts the

employer’s operations, employers have the right to reassign them. The alternate position however must be

equivalent to their initial position in terms of pay and benefits. You cannot demote an employee or reduce

their benefits when reassigning them. The only situation in which an employee may lose their right to

reinstatement is when that employee is considered a “key” employee whose absence would cause

“substantial and grievous economic injury” to the employer, according to the Act.

Record Keeping

Lastly, it is the employer’s responsibility to keep FMLA records for at least three years. There is no

standardized format or procedure necessary, the records simply need to be readily available if ever

requested by the Department of Labor (DOL).

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Accurately Administering Leave and Discouraging Abuse

While intermittent leave will remain the most problematic

and easily abused area of the FMLA, aggressive

management of it does not mean discouraging your

employees from taking leave when it is legitimately needed.

For qualifying employees, FMLA and intermittent leave is a

right and all communication and interactions should

reinforce your respect for the employee’s right to take

intermittent time off or extended leave for FMLA qualifying

purposes. In fact, these initiatives should ideally help make

FMLA become even more valued by management and

employees. In the following section we will explain ways in

which employers can better manage intermittent leave in

order to discourage potential abuse.

Maximizing the Medical Certification Process

One of the best tools employers can use to discourage

abuse is the initial medical certification process. This

beginning stage allows employers to justly and lawfully

request information regarding the need for leave. If the

provided medical certification is not sufficient, employers

can send a written deficiency notice to the employee

communicating what they must do to obtain FMLA

protection. While you may extend the employee’s time to

return a complete and sufficient medical certification, you

must provide at least 15 days for the employee to do so

initially. Finally, if the certification is not returned and there

are insufficient reasons for the delay, you have the right to

deny the FMLA leave request.

Independent Medical Evaluations

Independent Medical Evaluations (IME), also referred to as peer reviews, are similar to second opinions in

that an uninvolved medical professional assesses the employee’s case. The intention of an IME is to provide

unbiased insight into the FMLA case to evaluate the diagnosis, treatment, work capacity and other factors.

They are different from second opinions in that there is not necessarily a face to face interaction between

the employee and the medical professional. In fact, it could be simply sending the employee’s file to an IME

professional for review.

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Establish Call-In Programs

Effective call-in programs can ensure that all legitimate requests are respected and can assist in preventing

abuse. A successful call-in program will require employees to confirm the reason they are seeking FMLA

intermittent leave and clarify, to the best of their ability, the anticipated frequency and duration. The best

way to ensure that you get enough information during the initial intake and to show consistency in your

administration is to have a standard list of questions to ask employees.

Another important component of your call-in program is to ensure that you capture the right information

when your employees report their absences because of the fact that they may have multiple intermittent

FMLA cases open. Under the FMLA, you are allowed to ask the employee to clarify which FMLA case their

absence is for and should be doing so in order to be able to properly designate the absence. You also need to

ensure that this information is communicated to the right people in your leave team. Finally, your call-in

program should also be verifying that the employee has provided sufficient notice for the need for leave as

required by the company call-in policy and FMLA regulations.

Review Frequency and Duration

In order to ensure employees are taking the leave they have been approved for, it is necessary to

periodically review the frequency and duration outlined in the medical certification and compare this to the

absences the employee has taken. It should be noted that a one to one comparison does not work, but

rather you should be looking for significant deviations from the expected frequency and duration. If

deviations are apparent, you may request recertification.

Surveillance

If there is a concern of suspected abuse, say the employee consistently takes Mondays and Fridays off,

employers may choose to enforce a check-in policy that goes beyond the call-in program or even to conduct

surveillance. Interfering with an employee’s FMLA leave is unlawful and it is advised to consult with an

employment counsel in advance about steps of this nature. Consider the circumstance of the leave – is there

a physical limitation with visible restrictions or something harder to substantiate – and the possible

outcomes, both positive and negative. Any measures that are taken must not invade the employee’s privacy

or that of their family.

Video surveillance of an employee to prove FMLA intermittent leave abuse (Scruggs v Carrier

Corp, 2012) may seem like a more extreme measure than calling an employee on leave

(Terwilliger v Howard Memorial Hospital, 2011) but the courts may disagree with you, which is

why it’s crucial to carefully assess each situation in which surveillance is proposed.

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Paid Leave

Offering paid company policies is another way to gain more

control over intermittent leave. As an employer, you can offer a

paid leave policy that employees can take when they are also

taking FMLA, either for part or all of the time. You cannot

interfere with your employees’ right to take FMLA, however if

they want to be paid for missed time, you can set additional

eligibility requirements for advance notice, certification, absence

reporting and more. This carrot and stick approach can be used as

an incentive for employees to use leave more responsibly.

You can also require employees to use their paid time off, for

example vacation, when they take FMLA as a way to deter abuse.

A Compliant Leave Program

The DOL’s Wage and Hour Division (WHD), responsible for the

enforcement of FMLA and its litigation, has added hundreds of

new investigators to their team in recent years to respond to the

25,000 workers who contact them annually for assistance

regarding FMLA, minimum wage and overtime violations. With

the number of complaints on the rise and a commitment from the

DOL to increase targeted efforts, employers need to have a

consistent and effective compliance strategy in place.

Different leave types may run concurrently and in order to be

compliant, all applicable leaves must be designated. Accordingly, when an employee has requested an FMLA

leave, a compliant leave program will also identify if the absence is covered by any other leave programs and

whether they will run concurrently or not. When properly implemented, a compliant program should be

doing the following:

Capture detailed reasons for absences

Make frequency and duration information readily accessible for approved FMLA leaves

Expose any suspicious absence patterns, suggesting misuse of FMLA

Identify if an absence is also covered by other leave programs

Trigger the need for recertification when absence patterns deviate from those certified

Ensure that all leave types are applied consistently and equitably to employees

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Make Technology Work for You

The simplest way to accurately administer intermittent leave is to

ensure that you exercise your rights consistently. This is one area where

a compliance driven software solution can greatly enhance your leave

management administration. Tools like auto-generated follow-up tasks

and leave correspondence ensure that every employee and leave request is treated in the same manner. Not

only does this enhance compliance, it streamlines processes and allows both the employer and employee to

adhere to deadlines, while also reducing risk under the ADA for discrimination.

If your technology is not working for you, it is not working. There are several aspects where technology can

be utilized to improve and expedite the leave process. The right software will:

Tell you when to complete leave tasks to meet compliance

Automatically generate leave correspondence to meet deadlines and protect your organization

Track dates, reasons and follow-up actions for leaves that are approved

Conduct automatic checks to make sure employees haven’t overstepped their entitlement

Identify undesignated absences and trigger follow ups

Coordinate the use of paid leave with unpaid FMLA leave

Provide monthly entitlement updates for the employee

Maintain copies of all employee correspondence with a full audit trail

Overall, your program should provide the level of detail needed to determine leave compliance. With a

compliant leave program in place, the next time Sophia, Matthew, Dave and Chloe all step forward with

different intermittent leave requests, it will no longer seem like a labor intensive chore but rather a

manageable part of your regular internal operations. Especially combined with the invaluable assistance

provided by the high caliber of software offerings on the market today, managing intermittent leave can be

simplified while ensuring that employee and employer rights are both respected.

About Presagia

“Almost compliant” means

you’re always at risk.

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About Presagia

With offices in the U.S. and Canada, Presagia provides integrated absence management software solutions

to employers and Human Resources Outsourcing Providers. These innovative solutions, designed to account

for more than 450 pieces of federal and state leave legislation across 53 jurisdictions, enable organizations to

increase efficiency, improve compliance, control absence, and reduce risks and costs. Presagia customers are

located around the world and include enterprises such as Ceridian, the University of Pittsburgh Medical

Center, CenturyLink/Qwest, American Foods Group, Scripps Health and Multicare Health System.

www.presagia.com