Intermittent Family Medical Leave: A Delicate Balance of Rights

Article by Angela Cronk

The Family Medical Leave Act of 1993 (FMLA), 29 U.S. Code § 2601, et. seq, has been in effect for more than 20 years. It has undergone several updates in recent years including an extension of additional benefits to military families, airline flight crews and in certain instances equivalent benefits to same-sex spouses. However, the concept of intermittent FMLA still remains a mystery to most employees and even many employers. Both parties have obligations under the statute and finding the right balance may be the key to preventing misunderstandings that could lead to unnecessary litigation.

One of the purposes of the FMLA is to allow an employee to take reasonable leave for medical reasons “in a manner that accommodates the legitimate interests of employers.” 29 U.S.C. § 2601(b). From the employer’s standpoint, the most difficult issue is determining whether the medical issue is one that qualifies under the FMLA. If an employee calls off with an asthma attack or back pain, this first isolated incident might not be viewed immediately as an FMLA qualifying event. However, if the employer notices a pattern of call-outs or learns from a supervisor or even the employee about an ongoing health issue, the employer should look into the situation further. Unlike, the Americans with Disabilities Act, the regulations under the FMLA permit an employer to “inquire further” about an employee’s medical condition. See 29 C.F.R. § 825.302(c). This limited inquiry can help the employer determine if the leave is qualified. Obtaining a certification from the employee’s medical provider is the next necessary step. A new certification can be requested in accordance with the employer’s procedures, but not more frequently than every 30 days. See 29 C .F.R. § 825.308(b)(2) and (c). If the employee fails to obtain a new certification, the employee may lose their rights for leave under the statute.

Once it is determined that the employee needs intermittent leave or a reduced work schedule, the employee must work with his or her employer to schedule the leave to avoid disrupting the employer’s operations. When the intermittent leave is foreseeable for treatments such as physical therapy, the employer may ask the employee to try to schedule medical appointments at different times. However, the employer must abide by the recommendations or requirements of the employee’s health care provider.

If the employee’s leave is creating a problem for the employer or for other employees, the employer has the right to temporarily transfer the employee to an alternative job that will better accommodate the recurring periods of leave. Such a transfer may be necessary where the employee has a supervisory job where his or her presence is required during particular hours of the day. However, the temporary job must provide equivalent pay and benefits to the employee. In addition, an employee’s use of intermittent FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using (but not necessarily during) FMLA leave. Employees must also continue to abide by company policies, including call-out policies, which would include notifying the employer that the call-out is related to the serious illness for which they were granted intermittent FMLA.

Upon return or expiration of the intermittent FMLA leave, an employee must be restored to his or her original job, or to an “equivalent” job, which means a job virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions.

There can be exceptions to denying the return to the employee’s original job. Specifically, an employer may deny job restoration to “key employees.” A “key employee” is a salaried, FMLA-eligible employee who is among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee’s worksite.

In order to deny restoration to a key employee, an employer must determine that the restoration of the employee to employment will cause “substantial and grievous economic injury” to the operations of the employer, not whether the absence of the employee will cause such substantial and grievous injury. It is important to note that if an employer believes that the employee may qualify under this exception, that the employee is given written notice at the time leave is requested or upon the commencement of leave.

To ensure that both the employee and employer are equally protected, communication between the parties is important. An employer should take into account that the employee is dealing with a stressful situation, either with their own health issues or those of a loved one, and the employee should understand that the employer is following the law when requesting updates and certifications regarding their current status. In the end, an open line of communication can ease the tension on both sides of the fence.