Organization Is the Key to Managing Intermittent FMLA Leave

 

By Mark Feffer July 29, 2019
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​In concept, the Family and Medical Leave Act (FMLA) is simple: Under certain circumstances, employers must provide up to three months of unpaid time off each year, with benefits, so workers can take care of family or medical needs.

In practice, however, administering FMLA leave can quickly become complicated, HR experts say, especially when the leave is intermittent. "It's possibly one of the hardest parts to deal with of [the] FMLA," said Caliopie Walsh, chief people officer for Third Bridge Group, a financial research firm based in London.

Tracking consecutive FMLA leave—when workers take their 12 weeks at once—is relatively simple: The employer begins counting from the start date. But often workers need to take time off in irregular blocks. For example, they may need two hours each week, and not necessarily on the same day, for their own or a family member's medical treatment.

In other cases, a physician may authorize employees to take intermittent leave as needed so they can rest on days when they're not well enough to work. Such circumstances make managing the leave a challenge, said Angela Reddock-Wright, founder and managing partner of the employment law firm Reddock Law Group in Los Angeles.

The best thing to do is plan in advance. "With some planning and some flexibility, those [leave management] issues can be overcome," Walsh said.

As you formulate your approach to managing intermittent leave, consider these issues:

Have a Point Person

Administering FMLA leave can be a lot simpler when one person handles it for the organization, Reddock-Wright said. Ideally, that person will have had some experience in managing leave. If not, providing at least some training and support is critical.

"If an organization can designate that as part of someone's duties—getting them training, making sure they're able to call their employment law attorney, making sure they [stay] updated on legal changes—they can be equipped to really manage those issues day to day," she said.

But managing intermittent leave involves more than administration, Reddock-Wright added. Staying current with legal and regulatory developments can be challenging, especially in states like California, where employers must be aware of case law, as well as state and federal laws. "The case law changes on a regular basis," she said, "so the person who's managing leave has to be really up-to-date on the best practices."

Also, managing leave can become a full-time job as an organization grows, warned Reddock-Wright. "It's just a challenge in terms of the time and the commitment it takes to make sure you're processing things right," she said. Even a larger company's HR team may struggle, depending on how many leaves it oversees and the regulatory changes it must follow.

[SHRM members-only toolkit: Managing Family and Medical Leave (FMLA)]

Create Policies and Procedures

Creating written policies and forms for employees and managers to use before and during the leave period can make administration easier and help ensure compliance. Employers should "have a thorough, well-thought-through policy and standard operating procedures around requests and tracking," Walsh said.

While the U.S. Department of Labor provides several forms that employers can use to certify different aspects of FMLA leave, they don't cover every contingency. "The forms are a good start, but you may want to be more flexible with your policy than the form allows," Walsh said. Employers are permitted to use their own forms, the department says, but employers can't ask employees for any information that's not specified by the FMLA.

Melissa Burdorf, a legal editor at XpertHR in New Providence, N.J., suggests that companies require that whenever possible, employees inform their managers or HR before taking time off. For example, they should provide advance notice of scheduled medical treatments through a conversation, e-mail or form. When giving notice isn't possible—for example, in the case of a medical emergency—employers can still require workers to explain why advance word wasn't possible, she said.  

Employers can also require workers to provide periodic reports on their status and intent to return to full-time work, Burdorf said. If the stated reason for a leave changes, she suggests requiring new certification. That "will assist an employer in clearly identifying what the employee needs and why," she said.

Be Sure FMLA Applies

Identifying when the FMLA applies to a worker's need for time off is a particularly daunting challenge. Employers often jump to approach every medically related leave as an FMLA issue when the act may not even apply, such as if the employee hasn't worked 1,250 hours in the preceding 12 months at an employer with 50 or more workers within 75 miles.  

"There are clear criteria as to what qualifies as FMLA leave," Burdorf observed, "and when you get down to intermittent FMLA leave, that really requires a specialized knowledge. How do you know when you need a consecutive leave versus intermittent? Getting it right from the beginning is really critical."

For instance, a worker's need for time off may be covered under the Americans with Disabilities Act (ADA).  While the act generally protects employees from having to disclose the specifics of a disability, that doesn't mean HR must operate uninformed. Workers or their physicians must describe the circumstances that require either time off or other necessary accommodations under the ADA.

"The HR department really wants to get as much information about how often and under what circumstances the employee is entitled to take off—and even what days and time, if possible—so the employer can anticipate and plan for their absence," Burdorf said.

Educate and Communicate

Obviously, organizations must have a basic understanding of when they must grant intermittent leave or when it's optional, Burdorf said. For example, intermittent leave is required when a worker or covered family member has a serious health condition, but it's optional for child bonding.

Regular communication between everyone involved is critical to managing intermittent leave. Employees also need to understand how the FMLA works and what's required of them, Walsh said. "Begin an open dialogue, use technology to ease communication, and be flexible on how you cover the work," she suggested.  

Pay special attention to communications when supervisors or managers are involved. Both managers and employees should track time off and inform HR when leave is taken, Walsh said. Issues can crop up when either party loses track of leave, or if workers don't notify their supervisors about time off until after they have begun taking it.

Use Procedures and Tools

Many HR practitioners stumble because of scarce resources and poor record-keeping, according to Corinne Jones, president of the HR consulting firm CJC Human Resource Services in New York City. She pointed out that a variety of software tools are available to manage leave and "reduce the risk for miscalculation."

For organizations that can't afford such tools, Reddock-Wright advised using spreadsheets, an online calendar or even paper forms that will help track leave time used. Besides helping administer the leave, this approach provides a record of what time has been taken and what accommodations have been made.

Mark Feffer is a freelance business writer based in Philadelphia.

[Visit SHRM's resource page on the Family and Medical Leave Act.]

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