For your clients, navigating intermittent leave administration under the Family Medical Leave Act (FMLA) may feel like the ultimate balancing act. The line between helping employees take time off work to manage their health and family matters, and doing so in a way that fulfills legal obligations, may seem like a tightrope.
Trying to walk the line between being respectful of employees’ needs to seek medical care and concerns about abuses may leave your clients feeling discouraged. However, while the FMLA was established to help protect employees’ rights to take a leave for family and medical reasons, there are also provisions that help employers ensure these absences are legitimate.
Educating your clients about the parameters of proper intermittent leave administration strengthens your relationship, while helping them avoid being too strict or too lenient in their approvals. Here are six recommendations your clients can use to better manage intermittent leaves:
1. Adopt FMLA-mandated employee notice requirements. FMLA dictates an employee must provide at least 30 days’ notice for a planned leave, such as a scheduled surgery. For unforeseen absences, such as emergency surgery or treatment for a severe illness or accident, the employee must provide notice as soon as possible.
2. Enforce call-in procedures that require employees to provide enough information to determine if their absences qualify for FMLA protection. This may include such information as:
- The specific reason for the absence
- If the employee plans to see a physician
- If the employee has previously taken a leave for the same condition
- When the employee first learned that he or she would not be able to work
- When the employee expects to return to work
3. Request completed medical certifications. FMLA states that, barring special circumstances, employees must provide completed medical certifications within 15 days of their employer’s request. A completed medical certification includes medical facts, which job functions the employee is unable to perform, the amount of leave needed and will be signed and dated by the healthcare provider.
4. Follow up to verify certifications. Upon receiving an employee’s certification, HR managers should ensure that it is complete and provides sufficient information to understand the employee’s leave requirements. If it is not complete, responses are vague or evasive, or there are questions as to whether the form was completed by the healthcare provider, managers should ask the employee to have the provider address the issue. If the employee does not respond within the time provided, an employer may use a healthcare provider, an HR professional, a leave administrator or a management official (but not the employee’s direct supervisor) to reach out to the employee’s medical provider, but only to ascertain:
- That the form was properly completed and/or authorized by the employee’s provider
- That the employee’s certification is understood correctly and in the proper context. This could mean, for instance, reaching out to a doctor to verify that the employer has the correct understanding of the absence parameters and any duties the employee is unable to perform.
The employer is barred from requesting any other information about the employee’s medical condition.
5. Get a second opinion when warranted. Employers may require the employee seek a second opinion, if they doubt the validity of the certification; however, the employer must cover the associated costs. If the second provider doesn’t agree with the initial certification, then an employer may require a third opinion. The employer and employee must mutually agree on a third provider, whose opinion will serve as the tie-breaker and will be final and binding.
"While your clients may think of employees’ intermittent leave requests as a minefield, these six best practices will help them manage them more effectively."
6. Request employees to be recertified as needed. An employee can be asked to recertify every 30 days, but not more frequently. If the initial medical certification indicates that the condition will last longer than 30 days, before requesting recertification an employer must wait six months or until the stated duration is over, whichever comes first.
An employer also can request a recertification in less than 30 days if one of the following applies:
- The employee requested that their leave be extended
- Circumstances have changed significantly (for instance, if absences have increased from two days per month to 10 days per month)
- Information comes to light that casts doubt on the employee’s reason for the leave
While your clients may think of employees’ intermittent leave requests as a minefield, these six best practices will help them manage them more effectively.
