FMLA issues that plague employers and how to cope with them, Pt. I

Intermittent Leave - Pattern of Absences

When the Family and Medical Leave Act (FMLA) became law in 1993, I was a USDOL Wage and Hour (WHD) Investigator working in a one-person office in Waterloo, Iowa. Prior to the law’s effective date, I had been chosen to train WHD staff on this new law, and I spent a month traveling to WHD offices throughout the Midwest to spread the FMLA gospel. Subsequently, as the only WHD Investigator in Northeast Iowa, I conducted hundreds of FMLA investigations. In 1999, I became an Assistant District Director, supervising 13 investigators and reviewing all of their work, including many hundreds of FMLA investigations. In 2000, I became a District Director for WHD, responsible for overseeing FMLA enforcement in Iowa and Nebraska. Now, in my work for employer clients, I train and help employers with how to administer the FMLA in a way that will most likely pass muster with the WHD.

In the 24 years since the FMLA became effective, I have heard untold numbers of employers say, “It is almost impossible to control attendance of employees on intermittent FMLA leave.” And according to the 2017 Littler Annual Employer Survey, administration of intermittent Family and Medical Leave Act (FMLA) leave remains a top concern for employers. Sixty-five percent of employers identify “intermittent FMLA leave taken in an unpredictable manner” as among the most difficult accommodation requests to administer.

Based on my personal experience, and confirmed by the results of the Littler survey, employer frustration with FMLA administration is rampant. It is also understandable. However, I do not agree that employers can do little to manage the use of intermittent FMLA leave. Admittedly, there is a window for employees who would abuse FMLA leave. But the current FMLA regulations give employers leverage to manage intermittent FML and to deal with its abuse. For years I have advised employers to keep three things in mind regarding managing FMLA leave: (1) Don’t lose FMLA focus; (2) Hold employees accountable; and (3) Communicate, communicate, communicate.  

Don’t Lose FMLA Focus

Like it or not, managing FMLA use is a never-ending chore, and employers who slack off will pay a price.  Once enforcement of company FMLA policies becomes lax, and employees get used to a laissez-faire atmosphere, it is difficult to restore accountability – employees will naturally resist, particularly if there is a collective bargaining agreement in the mix. Proper FMLA focus involves having a knowledgeable staff to administer FMLA policy, on-going training for first-line supervisors, and attention to required posters and notice requirements. Consistency of practice is also critical to well-run administration of a good FMLA policy. To allow one employee 30 days to submit medical certification, while another employee is ‘dinged’ for turning in a med cert later than 15 days, invites problems—including a possible complaint to DOL and resulting investigation, or worse, a lawsuit. 

Hold Employees Accountable

This is the number one FMLA gripe I have heard from employers over the years: “Employers are required to follow the rules to the letter, but employees can get away with abusing their FML to take time off whenever they want.” My response is: “You may not be able to close the window of abuse completely, but you sure can make it smaller.” The key is to consistently enforce company FMLA policies (assuming those policies are good and comply with the law) and hold employees accountable to the maximum extent allowed by the law.    

An area in which employers don’t always take advantage of the FMLA regulations to hold employees accountable is the intermittent leave user with the dreaded “pattern of absences.” This employee typically has a chronic medical condition that mysteriously results in FML absences on Mondays, Fridays and the days before and after paid holidays. If the employer has accepted a medical certification that states the employee will likely have his condition on those particular days, the employer is stuck. In all my years enforcing FMLA, I have never seen such a cert, but there’s a first time for everything. 

The FML regs at 29 CFR Part 825.308(c)(3) state that if an employer has information that casts doubt on the employee’s stated reason for leave, the employer may request recertification from the employee.  This applies even if the employee is not exceeding the estimated frequency or duration noted on the most recent certification. Also, when the employer has information that casts doubt on the use of FMLA, the no-more-often than 30-day rule for requesting recertification does not apply. The DOL has issued guidance saying that this pattern of absences constitutes information that allows the employer to ask for a recertification every time the employee is absent on FML on a Monday, Friday, etc.    

You may be saying to yourself, “Big deal – most employees can get a doctor’s note saying they needed FML just about any time they want one.” And this can be true. But, by requiring the note, you are making the employee accountable, and sending a message to the employee (and other employees this person talks or complains to) that intermittent FML is not a free ride to a three- or four-day weekend.  And if the employee’s health care provider charges him or her for FML paperwork, you may find your employee is missing even fewer Mondays or Fridays.

Communicate

I am amazed at the number of employers that don’t communicate well with their employees who request or are on FML. The regulations are peppered with sections that suggest, and even encourage, employer-employee communications to work out issues such as reduced leave schedules, and intermittent leave use. In the example of the pattern of absences above, the employer could meet with the employee and tell him or her that the pattern has been noticed, the FMLA regs allow the employer to request recertification any time FMLA is used on a ‘pattern day’, and the next time it occurs, he or she must provide a doctor’s note affirming that FML was needed on that day. Doing this may stop the pattern and eliminate the need to request recertification altogether. 

Following my three strategies (Maintaining FMLA focus; Holding employees accountable; and Communicating) will not eliminate all of the frustrations of managing intermittent FML. But it will reduce the abuse. In future posts, we will examine other headache-inducing FMLA issues for employers, and share strategies on to cope with them.    

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

- Mike Staebell