XpertHR Reports on Nine Ways to Curb FMLA Intermittent Leave Abuse

Intermittent Leave Can Disrupt Business Operations, Result in Headaches For Employers, Says New XpertHR Report

New Providence, NJ/Los Angeles, CA (April 2, 2019) -- Intermittent leave is one of the biggest headaches for employers administering leave under the Family and Medical Leave Act (FMLA), says a new XpertHR report that provides insights on dealing with unplanned, repeated and sporadic leave requests. Intermittent leave may be taken for both planned treatment and unanticipated medical treatment or medical issues (such as a migraine or a Crohn's flair up). One of the reasons intermittent leave can be a problem is because the absence is unpredictable, and employers may be challenged in finding coverage for that employee's workload.

"Intermittent FMLA leave may also be problematic for employers because it can open the door for abuse by employees and more opportunities for an employer to fall short during the notice and certification process to prevent the abuse," says Melissa Silver, JD, Legal Editor, XpertHR. "Since the leave may be sporadic, employers need to be extra vigilant when counting and tracking leave taken to ensure the employee does not take more leave than he or she is entitled. Further, workforce morale may go down if the employer does not crack down on FMLA leave abuse."

The first step for an employer is to determine whether the company is subject to the FMLA and if the employee's leave is covered. If an employer has not employed 50 or more employees for each working day during at least 20 calendar workweeks in the current or preceding calendar year, they are not subject to the FMLA. An employee must satisfy certain criteria as well in order to be eligible for leave under the FMLA.

An employer must grant an employee intermittent leave when:

  • The employee has a serious health condition;
  • The employee is needed to care for a spouse, parent or child with a serious health condition;
  • It is medically necessary for the employee to care for a servicemember with a serious injury or illness; or
  • A military exigency arises out of a military member's covered active duty or call to covered active duty, such as making childcare arrangements.

XpertHR offers these important considerations to manage intermittent leave:

Set up a Procedure for Requesting FMLA Leave - An employer should require employees to speak with their managers or a designated representative prior to taking intermittent leave for a foreseeable reason. If the leave is unforeseeable, then the employee must provide notice to the employer as soon as practicable.

Require Certification for Support of an Intermittent Leave Request - A certification form can be used to determine if intermittent leave is medically necessary and can be used to curb abuse.

Obtain Recertifications - A recertification can help confirm an employee's suspicious pattern of absences.

Require an Employee to Use Paid Time Off If Allowed - An employee is less likely to abuse FMLA leave if he or she has to burn up vacation time or paid personal days to do so.

Enforce FMLA Policy and Call-In Procedures - An employer can enforce call-in procedures requiring prompt notice of absences, as well as no-call, no-show policies, with employees who are otherwise qualified to take FMLA leave.

Properly Track FMLA-Related Absences - In order to stay on top of an employee's FMLA-related absences, an employer should create a system to track intermittent leave and notify the employee when his or her FMLA leave entitlement is nearing exhaustion.

Consider a Temporary Transfer - Temporary transfers are limited to foreseeable leave based on planned medical treatment or the recovery from it, not for unplanned medical treatment.

Train Supervisors - Increasing supervisors' knowledge of the law, as well as the role supervisors play in regard to FMLA leave requests, compliance and enforcement can enhance compliance efforts and help to catch fraud and abuse early.

"Although it may be challenging, the burden of managing intermittent leave will be minimized if employers are prepared at the outset," says Silver. "By being proactive, an employer can prevent the onset of an FMLA headache."

To download the free whitepaper 9 Tips to Cure the FMLA Intermittent Leave Headache, visit XpertHR.

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XpertHR helps build successful workforces by providing practical tools, expert resources and agile HR solutions at the federal, state and municipal level to help businesses stay a step ahead.


Editor's Note: Melissa Silver, JD, XpertHR Legal Editor, is available to for interview. If you use any of this material, please include a link to XpertHR.

Media Contact:

Beth Brody (for XpertHR)