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FMLA FAQ: Spotlight on Intermittent Leave

CoAdvantage- The Family and Medical leave Act (FMLA) is a vital piece of legislation with which most businesses must comply. Specifically, the law provides certain employees with up to 12 weeks of unpaid leave per year while protecting their job and some of their benefits.

However, the legislation around leave can be complex. For instance, it can be confusing when an employee takes leave on an intermittent basis. This type of leave is usually used for needs like caring for a sick family member (including those sick with COVID-19) or recovering from an illness or injury, but time off is only needed on occasion (intermittently) instead of all at once.

Who qualifies for intermittent leave?

Generally speaking, anyone who qualifies for leave under the FMLA (criteria detailed here) will also qualify for intermittent leave.

What steps can employers take to minimize or mitigate the lost productivity?

The employer can take steps to account for the employee taking leave. For example, it’s okay to temporarily transfer an employee to another role, as long as the new position doesn’t affect the employee’s regular pay and benefits. However, once the leave ends, the employee must be able to return to his or her old job.

Additionally, any treatments or medical visits can be scheduled to minimize the impact on business operations, subject to approval by the employee’s health care provider.

What can you do if you’re suspicious an employee is abusing intermittent leave?

The employer can ask for a second opinion about the employee’s health condition (at the employer’s own expense), as well as request re-certification every 30 days. You can also ask for the employee’s health care provider to provide details about the employee’s treatment plans. You can also check up on the employee by calling them or hiring private investigators.

Can you terminate or punish an employee taking FMLA leave?

Although employees cannot be fired or disciplined for taking approved leave, they can be terminated or penalized for other employment matters, like failing to follow company policies or meeting their job requirements. Note, however, that the Department of Labor says that the burden of proof lies with the employer, who must be able to demonstrate the employment action is unrelated to the leave.

How can you minimize the risk of problems associated with employees taking intermittent leave?

Employers should establish clearly articulated policies for employees taking extended absences for any reason. Written policies will ensure consistency throughout the organization, protect against unintentional but actionable discrimination claims, and give managers a framework for dealing with team members gone for an extended period. Good policies make sure everyone shares the same understanding of how the intermittent leave will affect them and the workplace.

CoAdvantage, one of the nation’s largest Professional Employer Organizations (PEOs), helps small to mid-sized companies with HR administration, benefits, payroll, and compliance. To learn more about CoAdvantage’s ability to create a strategic HR function in your business that drives business growth potential, contact us today.