Handling Intermittent FMLA Leave – 3 Mistakes to Avoid


By: Barry S. Brownstein

The FMLA allows qualified employees to take 12 weeks of unpaid, job-protected leave per year for medical reasons or to care for sick family members. Once an employee’s leave period end, that person must be returned to the same job the worker held before, or to a virtually identical position. FMLA’s allowance for intermittent leave, or shorter, less predictable absences, often presents issues for employers.

Some employees may arrange a reduced schedule because of foreseeable medical treatment such as chemotherapy treatments every Wednesday. Employers can plan ahead to cover the time taken off by the employee in these situations. All medical conditions, however, do not follow a schedule. For example, employees who suffer from asthma are permitted to take FMLA leave when their conditions flare up, which often leaves employers with little to no advance notice either that the employee will miss work or when the employee will return to work.

Employers can avoid common mistakes in dealing with periodic FMLA absences through effective administration and record-keeping. When an employee makes a request for leave under the FMLA, that person must obtain a medical certification stating that leave is required. Once a request is granted, the onus is on the employer to ensure that the leave is carried out correctly, which requires the employer to track the amount of time a worker takes. If an employer doesn’t track leave time properly, it may mistakenly advise an employee that leave may be taken, which opens the employer up to legal claims.

Another common mistake made by employers is not knowing an absence is covered. While continuous leave periods are often associated with a significant event such as major surgery, intermittent absences can start out appearing much more benign. For example, an employee may take a day or two off for a relatively minor procedure, but if a complication arises, the employee could be out of work for a few extra days and additional days from time to time after that. Recognition is often a problem for an employer because not every absence starts out as FMLA. Such intermittent leave is allowed under the FMLA, and employers must make it a priority to maintain proper FMLA documents and paperwork documenting the employee’s absences.

A third mistake often made by employers in handling intermittent FMLA leave  is failing to investigate questionable absences. If an employer receives a tip concerning  possible fraudulent behavior, the employer should make every effort to investigate such behavior. A classic example of suspicious activity is an employee whose  unpredictable medical condition has a tendency to flare up on Fridays or Mondays, resulting in the employee consistently taking three-day weekends. An employer can prevent such abuse by completing at the start a sufficient certification of an employee’s need to leave. When there is reason to doubt the initial certification, the employer has the right to request a second opinion. If any questionable activity by the employee begins to take place during the leave period, the FMLA permits requesting recertification to ensure an employee’s leave is still needed.

For any questions, please contact Barry Brownstein at [email protected].