FMLA’s Intermittent Leave: Confused and Suspicious
Employers who originally envisioned or understood that FMLA would be taken once, in its entirety when an employee had a child or provided caregiver services for a family member have found it difficult to adjust to the provision of intermittent leave and reduced schedules for the impact they have had on the workplace. When dealing with intermittent leave employers are experiencing some new dynamics with employees including keeping detailed and precise records on how much time has been counted toward FMLA as well as eligibility for FMLA. Employers wonder what accommodations to provide the employee, how to cover for an employee who may be spontaneously or sporadically absent from work and have even found themselves evaluating if they have a right to terminate an employee on intermittent leave. When employees use FMLA intermittent leave for their own medical ailments it sometimes creates suspicious employers who feel they have employees abusing the right to time off under FMLA and has caused some employers to resort to surveillance upon their employees on leave. Intermittent leave can be a complicated part of FMLA for an employer.
The Family Medical Leave Act (FMLA) was signed in to law in 1993 under President Bill Clinton due to an increasingly diverse worker demographic, most notably women of child bearing age, mothers concerned with raising their young children, and the aging baby-boomer generation who were becoming more concerned with caring for themselves, their families and their parents.
FMLA provides an entitlement of up to 12 weeks of job-protected, unpaid leave during any 12-
month period to eligible, covered employees for the following reasons: 1) birth and care of the
eligible employee's child, or placement for adoption or foster care of a child with the employee;
2) care of an immediate family member (spouse, child, parent) who has a serious health
condition; or 3) care of the employee's own serious health condition. It also requires that
employee's group health benefits be maintained during the leave. The FMLA is administered by
the Employment Standards Administration's Wage and Hour Division within the U.S.
Department of Labor.
This twelve week leave period has caused confusion and uncertainty for the employer, in part, because it can be taken in a single block of time or with a reduced schedule or intermittently. Employees taking FMLA leave in small single blocks of time can count these smaller leave periods toward the twelve week total. An employee who would require a single block of time to take care of a needy parent or child would potentially be able to provide an employer details about the length of time needed and when they would need to schedule that time off. To illustrate, an employee’s parent who needed to undergo surgery would know the surgery date and would most likely have a predictable recovery time where the employer was needed to provide care. A health care provider would also have estimated recovery time before the employee’s parent could take care of themselves for certain types of medical procedures. FMLA time off in single blocks of time can still be predictable and clearly defined, lessoning the impact on an employer who will need to cover for that employee’s absence and tally the amount of time taken toward FMLA.
Changing the work schedule may be necessary if an employee needed to drive a child or parent to receive regular medical treatment such as dialysis. This could result in a reduced schedule situation where the employee took off one day a week to provide for their family member. Reduced schedules typically cause problems when an employee is moved from full time to part time and their benefit package changes or disappears.
Employees can also take intermittent leave in order to fulfill any childbirth, adoption, caregiver or personal health issues and concerns. Intermittent leave is...
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