HR Solutions: Intermittent FMLA Leave, Recertification, PTO Banks

Q: I have an employee out on intermittent leave under the Family and Medical Leave Act. How should I keep track of time if the employee works part of the day?

A: The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take up to 12 weeks per year of unpaid leave in connection with their own or a family member’s serious health condition, or the birth or adoption of a child.

An employee sometimes needs to take leave in separate blocks of time—so-called “intermittent leave”—because of a single qualifying reason. The FMLA regulations note that eligible employees may take intermittent leave when medically necessary for planned and/or unanticipated medical treatment of their own serious health condition, or recovery from a serious health condition or its treatment. Intermittent leave also may be taken to provide care for an immediate family member with a serious health condition.

For example, a mother who develops a serious health condition in connection with the birth of her child would qualify for intermittent leave. So too would parents whose newborn child has a serious health condition. (In situations where a newborn or newly adopted child is healthy, intermittent leave is allowed only if the employer consents to it.)

When an employee uses intermittent FMLA leave, the employer must subtract the amount of leave taken from the employee’s FMLA leave bank based on his or her normal work schedule. Therefore, if an employee who works eight hours a day, five days a week, needs to leave two hours early each day to attend physical therapy treatments, the employer would deduct one-fourth of a week from the employee’s FMLA leave bank.

The Department of Labor requires employers to track intermittent leave time by the smallest increment that the payroll system uses to track absences, as long as the increment is no greater than an hour. That way, an employee is not charged for using more FMLA leave than needed. Consequently, even though many employers have policies that require leave to be taken in four- or eight-hour increments, these policies would not apply to eligible employees using intermittent leave under the FMLA.

The business community has urged less cumbersome tracking requirements, but so far to no avail.

—KC

Q: Can we require recertification of a serious health condition every time an employee misses work while on intermittent leave under the Family and Medical Leave Act?

A: Except under limited circumstances, employers may not request recertification in less than the minimum period specified as necessary on the certification for intermittent leave. According to the Family and Medical Leave Act (FMLA) regulations, an employer can request medical updates for intermittent leave under the FMLA more frequently than every 30 days only if one of the following three exceptions applies.

The first exception is when the employee requests a leave extension.

The second is when “circumstances described by the previous certification have changed significantly (e.g., the duration of the illness, the nature of the illness, complications).”

The third exception is when “the employer receives information that casts doubt upon the continuing validity of the certification.” This allows the employer to verify or refute evidence that an employee may be abusing his or her FMLA rights. Keep in mind that the employer should tread cautiously here—this statement does not give the employer the right to request documentation every time the employee misses work.

Any recertifications requested by the employer are at the employee’s expense unless the employer makes other arrangements. The FMLA regulations specifically prohibit second or third opinions on recertifications.

The employee generally is required to provide any requested recertification to the employer within the time frame requested by the employer, as long as the organization allows at least 15 calendar days after its request. But the employee is permitted to take more time if it is not practicable under the particular circumstances to meet the recertification deadline when the employee is making diligent, good-faith efforts.

—LP

Q: What are some key factors I should consider when deciding whether to implement a paid-time-off bank at my company?

A: Some employers are wondering if the traditional leave program offers the best fit for their companies or whether a policy providing a paid-time-off (PTO) bank would achieve beneficial results such as a reduction in unscheduled absences.

Most traditional leave programs include a vacation leave bank, a sick leave bank, and perhaps the occasional personal day or floating holiday. A PTO program usually provides an aggregate of vacation leave accrual plus sick leave accrual and any personal days and floating holidays, creating one leave bank.

In most traditional sick leave programs, the employee accrues sick leave but it usually does not carry the same advantages of vacation accrual and is not “paid out” if the employee leaves the company. Knowing this, some employees may abuse sick leave by using it when they are not sick, resulting in higher absenteeism.

With one pooled bank of leave, employees are more likely to save the time for vacation. The downside for employers is that they may end up paying more for unused paid time off when employees resign. There are tools for addressing this problem such as lowering the cap on how much unused paid leave carries over to the next year.

What are some of the other factors you should consider? As noted in an HR News article in the September 2005 issue of HR Magazine, “Employers Find Smooth Sailing in PTO Waters,” many employees prefer PTO programs for their flexibility.

PTO programs also afford employees more privacy about their reasons for taking a day off. Employees may need the day to care for children, to wait for delivery of an appliance or simply to preserve their mental health. With the PTO plan, employees are free to take the day without making up an excuse, and the employer may find it has fewer leave abuse problems to police.

—LO

Kelly Clyatt, Liz Petersen, SPHR, and Lisa Orndorff, PHR, are information specialists in the SHRM Information Center.