Quick tutorial on FMLA and how to use FMLA properly!

The Family and Medical Leave Act (FMLA) protects employees who need to take time off work for family or medical-related absences, either for themselves or family members. FMLA time can be taken in various allotments. One such allotment is intermittent leave, which allows an employee to take leave from work in separate blocks of time for a single qualifying family or medical issue. 

What is intermittent leave? FMLA provides employees with unpaid, job-protected leave. This leave may generally be taken in three ways: Continuous leave: Leave that is taken in a continuous block of time (e.g., Aug. 1-31) Intermittent leave: Leave that is taken in separate blocks of time for a single, qualifying medical or family reason (e.g., Aug. 4-6, Aug. 8, Aug. 12-14) Reduced leave schedule: A leave schedule that reduces the usual number of hours per workweek or hours per workday of an employee (e.g., working 1 p.m. to 5 p.m. instead of the employee’s usual 9 a.m. to 5 p.m. schedule or working full days on Tuesdays and Thursdays instead of a set Monday through Friday schedule)

Common quick question from the employer:

Do I have to grant FMLA leaves for my employees?

Only employers with 50 or more employees who are employed for 20 or more calendar workweeks during the preceding calendar year must provide FMLA protection to their employees (public agencies and private and public elementary and secondary schools are covered regardless of their number of employees).

In addition, not every employee is eligible for FMLA leave. To be eligible, employees must be employed for at least 12 months by a covered employer, have worked at least 1,250 hours during the previous 12-month period before a leave takes place, and work at a location where at least 50 employees are employed by the employer within 75 miles of the employee’s worksite.

Common asked question:

What can intermittent leave be taken for?

There are a number of reasons an employee would qualify for intermittent leave, including:

? To recover from his or her own serious health condition

? To care for a family member with a serious health condition

? To care for covered service member with a serious injury or illness

? A qualifying exigency arising out of a family member’s military deployment Employers are not required to permit employees to take intermittent leave for the birth of a child, or placement of a child for adoption or foster care, but may agree to allow employees to do so.

What are an employee’s responsibilities when submitting a request for intermittent leave?

First, an employee must make a reasonable effort to schedule planned medical treatment so that it does not “unduly disrupt” operations. This may include scheduling medical appointments or treatments during less busy parts of the workday or workweek, or scheduling appointments outside of work hours whenever possible. Second, an employee needs to provide an intermittent leave request via a certification within 15 days of an employer’s request. This documentation is provided by the employee’s health care provider to support the employee’s need for an absence. It will outline parameters such as the times leave might need to be taken and how many days a month this absence could occur.

Follow FMLA’s Employee Notice Requirements:

The first step to develop an intermittent leave process for your workforce is to understand the basic intermittent leave notice requirements. For foreseeable leaves (e.g., a scheduled surgery, medical treatments) employees must provide 30 days’ notice, or provide notice as soon as practical under the circumstances. For unforeseen leaves (e.g., an emergency surgery, medical treatment due to an accident or severe illness), employees must provide documentation as soon as is practical.

Enforce Employer Call-in Procedures:

Employers have the right to enforce their regular call-in procedures when an employee is claiming an absence under intermittent leave. Specific information about when to call, who to call and what information employees must provide when reporting a leave of absence are all permitted and provide employers with good information to better manage employee leaves. When employees call in to report a leave, make sure you obtain sufficient information to determine whether the leave qualifies for FMLA leave. To obtain that information, consider asking the following questions:

? What are the specific reasons for your absence?

? What job duties are you unable to perform?

? Are you going to see a physician?

? Have you previously taken a leave for this condition?

? When did you first learn that you’ll need to be off work?

? When do you expect to return to work? 

Track Use Carefully:

It’s essential to track employee usage of intermittent leave. Proper tracking enables employers to provide just the right amount of FMLA leave their employees are entitled to, and it also can help employers detect patterns or trends that may suggest instances of misuse. For example, there might be certain days of the week, particular assignments, some departments or certain managers for which employees consistently take leave. Proper FMLA leave tracking doesn’t just focus on tracking when an employee is on leave. It’s also important to track how time away from work is logged. FMLA regulations specify that an employer must account for intermittent leave using increments that aren’t greater than the shortest amount of time used for other forms of leave (provided that period is no greater than one hour). In other words, if you track employee sick leave in half-hour increments and vacation time in one-hour increments, you must track FMLA leave in half-hour increments (the shortest amount of time).

Require Completed Medical Certifications:

FMLA regulations require employees to provide completed medical certifications within 15 days of an employer’s request for certification, unless special circumstances apply. But that doesn’t mean an employee’s certification must be accepted at face value. Upon receiving an employee’s certification, ensure it is complete and provides sufficient information to understand the employee’s leave requirements. If it is not complete, responses are vague or unresponsive, or there are questions as to whether the form was completed by the health care provider, request the employee obtain the missing information, clarify the unclear responses and/or authenticate the certification. If the employee fails to provide missing information, the certification is incomplete and leave may be denied. If the employee fails to clarify or authenticate the certification, the employer may use a health care provider, an HR professional, a leave administrator or a management official (but not the employee’s direct supervisor) to reach out to the employee’s medical provider only in the following circumstances:

To authenticate. An employer can send the employee’s health care provider a copy of the certification for verification that the form was properly completed and/or authorized by the employee’s provider. Aside from that, no other information can be requested on the employee’s medical condition.

To clarify. We’ve all seen doctors’ handwritten notes or instructions that are barely legible. To ensure proper context, employers can contact the provider to make sure they understand all of the employee’s certification. This could mean reaching out to a doctor to verify his or her handwriting or double-check that the employer has the correct understanding of the absence parameters and any duties the employee is unable to perform. No additional information can be requested outside of the clarifying questions.

Ask for Recertifications:

Employers generally can request recertification which can determine whether FMLA leave should be extended or if a significant change in an employee’s leave usage is the result of a supported change in a medical condition. An employee’s recertification cannot be requested more often than every 30 days. If the initial medical certification indicates that the duration of the condition will last longer than 30 days, an employer must wait until that duration expires before requesting a recertification. However, employers are allowed to request a recertification every six months, regardless of the stated duration. An employer also can request a recertification in less than 30 days if one of the following applies:

? The employee requests an extension of his or her original request.

? The employee’s circumstances have changed significantly from the original certification. For example, if an employee was missing one or two days per month, then started missing 10 days a month.

? The employer receives information that “casts doubt” on the reason for the leave.

Consider Obtaining a Second (or Third) Opinion:

If an employer doubts the validity of a certification, the employer can request a second opinion. This second opinion has to be completed at the employer’s expense. If the second provider doesn’t agree with the initial certification, then a third opinion can be sought — which essentially serves as a tiebreaker between the original certification and the second opinion. The third provider must be designated by both the employer and employee, and the opinion of this third provider is final and binding.

For example, a common cause of intermittent leave is migraines. In this situation, it’s difficult for an employee to predict when he or she will experience a migraine. However, there are different sensory triggers that can cause migraines, so accommodations can be tailored to specific individuals and what causes their migraine headaches, if known. There are a few best practices for helping employees who are using intermittent leave to deal with their own health conditions:

? Address the conditions early on. Connect with employees to discuss why they are missing work and how you can work together to help reduce the cause or symptoms.

? Create a plan and follow it. Migraines, as noted above, can be triggered by different sensory stimuli visual, auditory or olfactory. You can work with your disability provider and a consultant to determine reasonable accommodations, such as reducing fluorescent lighting, providing noise-cancelling headsets and/or designating fragrance-free areas at work.

? Don’t give up. Even the best-laid plans can go awry. Keep in touch with employees to see how they’re faring after accommodations are in place and whether additional or altered accommodations could help. 

FMLA Process Steps

1. Receive notice that employee is or will be absent for a reason that may qualify for FMLA 2. Determine Preliminary Eligibility Determine whether employee has been employed with state gov’t for at least 12 months. Identify continuous state service date. If less than 12 months, review for previous state service, service to the state through a temporary services agency, or absence on military leave.

Determine whether 1,250 hours were worked in 12 months before leave begins

Review leave taken for the preceding 12 months

Check for additional leave used during the current pay period

Subtract leave and holidays (and furloughs and suspensions, if applicable) from 2,080 standard hours (for full-time employees)

Determine whether employee appears to have FMLA-qualifying reason for leave

Determine whether employee has used all available FMLA leave

Review leave balances to determine whether employee will be in paid or unpaid status

3. Issue Eligibility, Rights, and Responsibilities Notice and include deadline for any needed supporting documentation (at least 15 calendar days later)

Provide Eligibility, Rights, and Responsibilities Notice to the employee within five (5) business days of becoming aware that a current or upcoming absence may qualify for FMLA protection.

(Optional) If the employee is at work, invite the employee & supervisor to discuss FMLA. If the employee did not submit an agency FMLA request form, and the agency uses such form, invite the employee to complete it during the meeting. (Note: A written FMLA request cannot be required, unless the agency requires written requests for ALL leave.) Give the employee the Eligibility, Rights, and Responsibilities Notice and any certification form that can be used for supporting documentation.

If the employee is not at work, send the employee the Eligibility, Rights, and Responsibilities Notice and a certification form that can be used to provide supporting documentation for FMLA leave, if needed. Maintain records in accordance with agency practice.

4. Confirm Eligibility & Issue Designation Notice Receive and review FMLA paperwork from the employee or representative.

If supporting documentation is incomplete or otherwise insufficient to determine eligibility, send request to the employee for complete and sufficient certification. Advise the employee how to cure the deficiency and include a deadline (at least 7 calendar days later). The US DOL Designation Notice template may be used for this purpose.

Family and Medical Leave Sample FMLA Process Steps FMLA Toolkit 12/2014 If complete and sufficient documentation is not received, FMLA may be delayed or denied.

If supporting documentation is complete and sufficient, prepare the FMLA Designation Notice and provide it to the employee within five (5) business days of receiving the information that allowed the employer to make the eligibility determination.

If the employee is absent for his/her own serious health condition, include a requirement for a fitness-for-duty certification before the employee can return to work if such is required for all similarly situated employees in the agency. (Note: If the FMLA will be intermittent, then a fitness-for-duty certification should not be required unless the serious health condition poses reasonable safety concerns about the employee’s ability to perform assigned duties.)

If employee will be on leave without pay (lwop) for an entire pay period, include information for continuation of benefits while on lwop.

If the information received does not support eligibility for FMLA, indicate on the Designation Notice that the absence will not have FMLA protection.

Maintain records in accordance with agency practice, which may include entering FMLA into PeopleSoft TeamWorks, if available, or some other tracking system.

5. Monitor Return Verify that employee returns to work, as scheduled, and has a fitness-for-duty certification, if required

(Optional) Prepare return-to-work correspondence, welcoming the employee’s return

If the employee is not released to return to work at the expiration of the FMLA leave entitlement because of a medical condition, determine whether the agency has a reasonable accommodation obligation under the Americans with Disabilities Act, as amended. If so, pursue reasonable accommodation.

If the employee does not return, as scheduled, and the agency does not have a reasonable accommodation obligation, then the agency should take appropriate employment action consistent with similar situations.