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Stewart: Considerations with FMLA Intermittent Leave

Most employers subject to the Family Medical Leave Act (FMLA) are experienced in handling a continuous period of FMLA leave. Employers, however, are not always accustomed to understanding FMLA leave for intermittent periods of time. In some ways, intermittent leave poses different challenges than a continuous period of absence poses.

As an initial foundation, an employee can take intermittent leave based on any of the regular FMLA qualifying conditions, such as bonding with a newborn or adopted child, a serious health condition of the individual employee, or to care for an immediate family member with a serious health condition, etc. The purpose of intermittent leave is that, logically, a person may need to take certain days off or work limited hours while they or an immediate family member requires periodic medical treatment. A person undergoing cancer treatment or a person rehabilitating from a physical injury would be clear examples of the need for intermittent, instead of continuous, medical leave.

Employers should be aware of some particular rights that they have regarding intermittent FMLA leave:

Medical certification can be requested, generally, every 30 days to ensure that the basis for intermittent leave still exists. Please note that if the certification indicates an initial period of time greater than 30 days, an employer may not request recertification within the initial leave period. Also, employers need to be consistent with any policy of requesting recertification to avoid a circumstance of an employee feeling targeted for taking leave.

Leave may be designated retroactively if appropriate. If an employer learns that an employee’s absence was a qualified FMLA event after the fact, the employer may promptly provide the FMLA paperwork to the employee to be applied retroactively. Time is of the essence with any such situation, but the key is that it is a tool to ensure FMLA time is applied where appropriate to minimize the overall impact of FMLA-related absence.

The employer may request that employees who are attending scheduled medical treatments schedule the treatments at certain times to minimize the disruption the leave may have on the employer, if feasible with the medical provider. For example, if a person has to go to physical therapy two times a week, an employer can request that the employee schedule it at the end of the work day, if available, to minimize what might otherwise be commuting time to return to the office. '

Employers may generally reassign the employee to other job duties while the employee is taking intermittent leave, if doing so allows the employer to better staff its operations. An example might be to reassign a supervisor to administrative functions, temporarily, if the scheduled intermittent absences would otherwise compromise the employer’s need to have a supervisor present at all times. A special caution with reassigning an employee is that the employee should be restored to their former position, or its equivalent, when the leave is finished, and in no circumstance should an employee be placed in a position that would seem like a punishment for having taken FMLA leave.

Of course, there are several additional intricacies of FMLA in general and specifically regarding intermittent leave. Employers are advised to thoroughly review the options available to them and consult with appropriate experts to develop a policy to handle intermittent FMLA leave.

• Brad Stewart is an attorney with Zukowski, Rogers, Flood & McArdle in Crystal Lake. Stewart mainly practices corporate and local government law. He can be reached at bstewart@zrfmlaw.com.

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