When Did Intermittent Become a Noun?

Eligible for Intermittent?

An employer must have 50 or more employees for at least 20 work weeks in the current or preceding calendar year at one or more worksites within 75 miles to be covered under the FMLA. The “Rule of 12″ is another basic requirement of the FMLA that employers often overlook: Only those employees who have worked 1250 hours in the preceding 12 months are eligible for up to 12 weeks of FMLA leave.

Intermittent FMLA leave is only required for the care for an immediate family member (spouse, child, parent, or someone standing in loco parentis) with a serious health condition, qualifying exigency leave, military caregiver leave, or medical leave when the employee is unable to work because of his or her own serious health condition. Employers do not have to allow employees to take intermittent leave for the birth or adoption of a child, although they can extend intermittent leave to those individuals if they wish. However, employers should consider the precedent that such an exception may create for employees in the future.

Certify, Certify, Certify!

The Initial Certification: An employee must provide a complete and sufficient medical certification for the FLMA leave within 15 calendar days from the employer's request absent unusual circumstances. The company has the right to reject a certification as incomplete or insufficient for a number of reasons. For example, if the certification is vague, ambiguous, non-responsive or lacking necessary information, the company should ask the employee to correct the deficiencies within seven calendar days. If the employee does not correct the deficiencies within seven days of the company's request, the company can deny the leave. However, employers should be cautious and document their reasons for believing the certification to be incomplete or insufficient (e.g., a certification is incomplete because a doctor did not provide any date or estimate of the employee's expected return to work).

If the medical certification is not legible, authentic or clear, the company should first inform the employee of the problems with the certification and give him or her seven calendar days to correct it with the doctor (see above). With the employee's consent, if the employee does not do so, or prefers that the company contact the doctor directly, someone from HR can then call the doctor's office. HR should not ask for additional information from the doctor; HR can only clarify the existing certification (e.g., What did you mean when you wrote … ?). If an employee does not give the company permission to contact her doctor, and does not provide a complete and sufficient medical certification herself, the company has the right to deny her FMLA leave request.

Second or Third Opinions: If there is a legitimate reason to doubt the diagnosis or prognosis of an employee's certification, the company can request that the employee obtain a second opinion from a doctor of the company's choosing. However, the company cannot use the same doctor for all employees (no “company doctor”), and the company must pay for the medical examination (including any out of pocket travel expenses incurred by the employee).

For example, if Employee X requests three weeks of Paid Time Off (PTO) during December, which is denied due to business demands, and he subsequently provides a medical certification that states he needs one month of leave for back pain, the company would have the right to ask him to see a second doctor at the company's expense.

If the second opinion differs from the first opinion, the company may request that the employee obtain a third opinion, which will be final and binding. Both the company and the employee must agree to the selection of the third doctor, and the company must pay for the medical examination.

There is no specific time frame for obtaining second and third medical opinions, but this should ordinarily be done as soon as the medical certification is received or as soon as there is a reason for doubting the validity of a certification (e.g., a supervisor sees the “injured” employee out playing basketball during his leave).

Recertification: The company has the right to request a medical recertification, at the employee's expense, every 30 days in connection with an absence, unless the original certification stated that the employee would need leave for longer than 30 days. For example, Employee A brings you a medical certification on Jan. 1 that says he will not be able to return to work until March 1. The company cannot request recertification until March 2. The company can request recertification less than every 30 days only if the employee requests an extension of leave or if the employee's circumstances have changed significantly. For long-term or lifetime conditions, such as asthma, the company can ask for recertification every six months.

An employee must submit the recertification paperwork within 15 calendar days of the employer's request. As part of the recertification process, the company can attach a copy of the employee's attendance record and ask the doctor to certify that the employee's need for leave is consistent with the pattern shown in the record. A medical recertification, whether requested every 30 days or six months, is not subject to the second and third opinion process. However, an employer can request an annual certification for all medical conditions lasting one year or longer, after which it can request a second and third opinion if there is a reasonable doubt as to its validity

Note that employers should be careful not to require a doctor's note for each instance of FMLA leave. For example, requiring employees to obtain a doctor's note for every instance of intermittent leave would likely violate the FMLA. Courts have likened the requirement of obtaining a doctor's note to the recertification process, which is only permitted under the circumstances described above. In addition, courts have held that requiring a doctor's note discourages employees from taking FMLA leave. Therefore, requiring a doctor's note for each instance of intermittent leave would likely violate the FMLA.

A Little Notice, Please!

Employers can also help curb abuse by ensuring that employees comply with company notice policy. Under the FMLA Regulations, an employer “may require an employee to comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” See 29 C.F.R. ' 825.302(d); Gilliam v. UPS, Inc., 233 F.3d 969, 971-72 (7th Cir. 2000) (“Nothing in the FMLA or the implementing regulations prevents an employer from enforcing a rule requiring employees on FMLA leave to keep an employer informed about the employee's plans.”).

An employer's notice policy can extend beyond requiring employees to provide notice that they are taking FMLA leave. For example, an employer may require an employee on FMLA leave to call a sick leave hotline if the employee leaves his home during the work day. A policy that requires the employee to call a sick leave hotline does not violate the FMLA because it neither prevents employees from taking leave, nor discourages the use of FMLA leave. In the absence of unusual circumstances, the employer may deny FMLA-protected leave if an employee fails to comply with a company's notice and procedural policies. 29 C.F.R. ' 825.302(d); see Lewis v. Holsum of Fort Wayne, Inc., 278 F.3d 706, 710 (7th Cir. 2002) (holding that employee's termination did not violate FMLA because the employee violated the employer's attendance policy by not calling in advance to notify the employer that she was taking FMLA leave following her vacation). This is because the FMLA does not “authorize employees to leave their employers in the dark about when they will return” from FMLA leave. See Gilliam, 233 F.3d at 971.

However, like most provisions in the FMLA, there is always an exception. An employee is excused from complying with an employer's notice policy if unusual circumstances prevent the employee from complying. For example, many employees will say that their migraine or asthma started “all of the sudden,” preventing compliance with the normal call in policy. In these situations, employers must be careful but are not without recourse. Employers should carefully document these call-in practices and look for patterns of abuse (e.g., calling in every Monday, weekends, before or after a holiday). These patterns may be strong evidence that an employee is abusing the FMLA and make discipline appropriate.

Just Playing Hooky?

Employers may take adverse employment action, including termination, when they have an honest suspicion that an employee is abusing FMLA leave. Pursuant to 26 C.F.R. ' 825.216(a), “an employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.” If an honest suspicion of fraud or misconduct is a sufficient basis to discharge an employee who is not on FMLA leave, then it is a sufficient basis to discharge one who is.

An employer with an honest suspicion that an employee abused FMLA leave need not definitively prove that the employee abused FMLA leave. However, if the employee produces a reasonable explanation in response to the employers honest suspicion, an employer's decision to take adverse employment action may violate the FMLA. Nelson v. Oshkosh Truck Corp., No. 07-509, 2008 WL 4379557 (7th Cir. 2008) (holding that a genuine issue of material fact existed where employee provided a doctor's note further explaining her need for FMLA leave in response to employer's honest suspicion).

How Much Is Too Much?

An employee's request for indefinite intermittent leave may signal that the employee is unable to perform essential job functions and thereby not entitled to FMLA leave. This principle was recently affirmed by the Eighth Circuit in Wisbey v. City of Lincoln Nebraska, 2010 WL 2650720, at *5 (8th Cir. 2010). In Wisbey, the Eight Circuit held that an employer did not violate the FMLA when it terminated an employee who requested intermittent FMLA leave for “six months or longer.” Wisbey, 2010 WL 2650720, at *5. The employee's request for leave caused the employer to question whether the employee was still able to perform her job as an emergency dispatcher. Id. at *1. As a result, the employee underwent a fitness for duty exam, where the doctor deemed the employee unfit for duty, and the employer terminated the employee. Id. at *2. The employee brought suit alleging violations of the Americans with Disabilities Act (“ADA”) and the FMLA. The court affirmed the district court's entry of summary judgment for the employer on both counts. Id. at *6-7. On the ADA count, the court held that the fitness for duty exam did not violate the ADA because the exam was a business necessity. Additionally, the court held that the employer did not violate the FMLA because the employee requested leave of “six months or longer,” and the employer could not expect the employee to return to work at the end of the leave. Id. Therefore, the court held that the employee was not entitled to FMLA leave. Id.

Given the Wisbey ruling, employers may find it easier to prove that an employee's request of intermittent leave for an indefinite period of time precludes the employee from FMLA protection. However, before denying leave, employers should carefully consider whether an employee's request for leave is covered under both the ADA and the FMLA. While an indefinite leave of absence is generally not a reasonable accommodation under the ADA, employers should at least consider the effect the ADA may have on a FMLA request. If an employee is covered under the ADA and the FMLA, the employee may request an extension of FMLA leave under the ADA as a reasonable accommodation. See 29 C.F.R. ' 1603.2(o). An employer may deny the employee's request for an extension of unpaid leave if doing so would amount to an undue hardship or would render the employee unable to perform the essential functions of his or her job. See 29 C.F.R. ' 1603.15(d). An employer who has provided an employee with 12 weeks of leave under the FMLA may have a hard time proving that an extension of leave would create an undue hardship. Therefore, employers should be cautious when deciding whether to deny intermittent leave requests.

Conclusion

While dealing with intermittent leave is one of the most difficult issues that HR staff faces, there are certainly some opportunities for employers to control employee abuse. Requiring thorough and clear medical certification may put employees on notice that the Company will strictly abide by the FMLA regulations and keep abuse to a minimum. In addition, employers who have an honest suspicion of abuse can require second or third opinions, and in some cases, employers can benefit from conducting an outside investigation. Finally, an indefinite request for intermittent leave may raise questions of whether the employee is even able to perform the essential functions of his or her job. FMLA issues are never easy to tackle, and employers must carefully consider all the facts before taking an adverse employment action, so when in doubt, seek legal counsel.

Ralph A. Morris, a member of this newsletter's Board of Editors, is a Partner in the Chicago office of Schiff Hardin LLP. He specializes in labor and employment law and is also an Arbitrator and Mediator and a member of the American Arbitration Association's panels for both. Ashley G. Eddy is an associate at the firm. She represents management in a wide range of employment and traditional labor matters.

Today it is not surprising to overhear employees talk about how they are “taking intermittent” on any given day. Whether it is a migraine, asthma or back pain, many employers face scheduling and productivity concerns resulting from employees' use of intermittent FLMA leave. This article explores some of the tools employers may use to curb abuse.

The Basics

When trying to minimize fraud and abuse, employers should start back at the basics of FMLA. Below are some basic strategies that can help employers control FMLA abuse within the bounds of the law.

Eligible for Intermittent?

An employer must have 50 or more employees for at least 20 work weeks in the current or preceding calendar year at one or more worksites within 75 miles to be covered under the FMLA. The “Rule of 12″ is another basic requirement of the FMLA that employers often overlook: Only those employees who have worked 1250 hours in the preceding 12 months are eligible for up to 12 weeks of FMLA leave.

Intermittent FMLA leave is only required for the care for an immediate family member (spouse, child, parent, or someone standing in loco parentis) with a serious health condition, qualifying exigency leave, military caregiver leave, or medical leave when the employee is unable to work because of his or her own serious health condition. Employers do not have to allow employees to take intermittent leave for the birth or adoption of a child, although they can extend intermittent leave to those individuals if they wish. However, employers should consider the precedent that such an exception may create for employees in the future.

Certify, Certify, Certify!

The Initial Certification: An employee must provide a complete and sufficient medical certification for the FLMA leave within 15 calendar days from the employer's request absent unusual circumstances. The company has the right to reject a certification as incomplete or insufficient for a number of reasons. For example, if the certification is vague, ambiguous, non-responsive or lacking necessary information, the company should ask the employee to correct the deficiencies within seven calendar days. If the employee does not correct the deficiencies within seven days of the company's request, the company can deny the leave. However, employers should be cautious and document their reasons for believing the certification to be incomplete or insufficient (e.g., a certification is incomplete because a doctor did not provide any date or estimate of the employee's expected return to work).

If the medical certification is not legible, authentic or clear, the company should first inform the employee of the problems with the certification and give him or her seven calendar days to correct it with the doctor (see above). With the employee's consent, if the employee does not do so, or prefers that the company contact the doctor directly, someone from HR can then call the doctor's office. HR should not ask for additional information from the doctor; HR can only clarify the existing certification (e.g., What did you mean when you wrote … ?). If an employee does not give the company permission to contact her doctor, and does not provide a complete and sufficient medical certification herself, the company has the right to deny her FMLA leave request.

Second or Third Opinions: If there is a legitimate reason to doubt the diagnosis or prognosis of an employee's certification, the company can request that the employee obtain a second opinion from a doctor of the company's choosing. However, the company cannot use the same doctor for all employees (no “company doctor”), and the company must pay for the medical examination (including any out of pocket travel expenses incurred by the employee).

For example, if Employee X requests three weeks of Paid Time Off (PTO) during December, which is denied due to business demands, and he subsequently provides a medical certification that states he needs one month of leave for back pain, the company would have the right to ask him to see a second doctor at the company's expense.

If the second opinion differs from the first opinion, the company may request that the employee obtain a third opinion, which will be final and binding. Both the company and the employee must agree to the selection of the third doctor, and the company must pay for the medical examination.

There is no specific time frame for obtaining second and third medical opinions, but this should ordinarily be done as soon as the medical certification is received or as soon as there is a reason for doubting the validity of a certification (e.g., a supervisor sees the “injured” employee out playing basketball during his leave).

Recertification: The company has the right to request a medical recertification, at the employee's expense, every 30 days in connection with an absence, unless the original certification stated that the employee would need leave for longer than 30 days. For example, Employee A brings you a medical certification on Jan. 1 that says he will not be able to return to work until March 1. The company cannot request recertification until March 2. The company can request recertification less than every 30 days only if the employee requests an extension of leave or if the employee's circumstances have changed significantly. For long-term or lifetime conditions, such as asthma, the company can ask for recertification every six months.

An employee must submit the recertification paperwork within 15 calendar days of the employer's request. As part of the recertification process, the company can attach a copy of the employee's attendance record and ask the doctor to certify that the employee's need for leave is consistent with the pattern shown in the record. A medical recertification, whether requested every 30 days or six months, is not subject to the second and third opinion process. However, an employer can request an annual certification for all medical conditions lasting one year or longer, after which it can request a second and third opinion if there is a reasonable doubt as to its validity

Note that employers should be careful not to require a doctor's note for each instance of FMLA leave. For example, requiring employees to obtain a doctor's note for every instance of intermittent leave would likely violate the FMLA. Courts have likened the requirement of obtaining a doctor's note to the recertification process, which is only permitted under the circumstances described above. In addition, courts have held that requiring a doctor's note discourages employees from taking FMLA leave. Therefore, requiring a doctor's note for each instance of intermittent leave would likely violate the FMLA.

A Little Notice, Please!

Employers can also help curb abuse by ensuring that employees comply with company notice policy. Under the FMLA Regulations, an employer “may require an employee to comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” See 29 C.F.R. ' 825.302(d); Gilliam v. UPS, Inc. , 233 F.3d 969, 971-72 (7th Cir. 2000) (“Nothing in the FMLA or the implementing regulations prevents an employer from enforcing a rule requiring employees on FMLA leave to keep an employer informed about the employee's plans.”).

An employer's notice policy can extend beyond requiring employees to provide notice that they are taking FMLA leave. For example, an employer may require an employee on FMLA leave to call a sick leave hotline if the employee leaves his home during the work day. A policy that requires the employee to call a sick leave hotline does not violate the FMLA because it neither prevents employees from taking leave, nor discourages the use of FMLA leave. In the absence of unusual circumstances, the employer may deny FMLA-protected leave if an employee fails to comply with a company's notice and procedural policies. 29 C.F.R. ' 825.302(d); see Lewis v. Holsum of Fort Wayne, Inc. , 278 F.3d 706, 710 (7th Cir. 2002) (holding that employee's termination did not violate FMLA because the employee violated the employer's attendance policy by not calling in advance to notify the employer that she was taking FMLA leave following her vacation). This is because the FMLA does not “authorize employees to leave their employers in the dark about when they will return” from FMLA leave. See Gilliam, 233 F.3d at 971.

However, like most provisions in the FMLA, there is always an exception. An employee is excused from complying with an employer's notice policy if unusual circumstances prevent the employee from complying. For example, many employees will say that their migraine or asthma started “all of the sudden,” preventing compliance with the normal call in policy. In these situations, employers must be careful but are not without recourse. Employers should carefully document these call-in practices and look for patterns of abuse (e.g., calling in every Monday, weekends, before or after a holiday). These patterns may be strong evidence that an employee is abusing the FMLA and make discipline appropriate.

Just Playing Hooky?

Employers may take adverse employment action, including termination, when they have an honest suspicion that an employee is abusing FMLA leave. Pursuant to 26 C.F.R. ' 825.216(a), “an employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.” If an honest suspicion of fraud or misconduct is a sufficient basis to discharge an employee who is not on FMLA leave, then it is a sufficient basis to discharge one who is.

An employer with an honest suspicion that an employee abused FMLA leave need not definitively prove that the employee abused FMLA leave. However, if the employee produces a reasonable explanation in response to the employers honest suspicion, an employer's decision to take adverse employment action may violate the FMLA. Nelson v. Oshkosh Truck Corp., No. 07-509, 2008 WL 4379557 (7th Cir. 2008) (holding that a genuine issue of material fact existed where employee provided a doctor's note further explaining her need for FMLA leave in response to employer's honest suspicion).

How Much Is Too Much?

An employee's request for indefinite intermittent leave may signal that the employee is unable to perform essential job functions and thereby not entitled to FMLA leave. This principle was recently affirmed by the Eighth Circuit in Wisbey v. City of Lincoln Nebraska, 2010 WL 2650720, at *5 (8th Cir. 2010). In Wisbey, the Eight Circuit held that an employer did not violate the FMLA when it terminated an employee who requested intermittent FMLA leave for “six months or longer.” Wisbey, 2010 WL 2650720, at *5. The employee's request for leave caused the employer to question whether the employee was still able to perform her job as an emergency dispatcher. Id. at *1. As a result, the employee underwent a fitness for duty exam, where the doctor deemed the employee unfit for duty, and the employer terminated the employee. Id. at *2. The employee brought suit alleging violations of the Americans with Disabilities Act (“ADA”) and the FMLA. The court affirmed the district court's entry of summary judgment for the employer on both counts. Id. at *6-7. On the ADA count, the court held that the fitness for duty exam did not violate the ADA because the exam was a business necessity. Additionally, the court held that the employer did not violate the FMLA because the employee requested leave of “six months or longer,” and the employer could not expect the employee to return to work at the end of the leave. Id. Therefore, the court held that the employee was not entitled to FMLA leave. Id.

Given the Wisbey ruling, employers may find it easier to prove that an employee's request of intermittent leave for an indefinite period of time precludes the employee from FMLA protection. However, before denying leave, employers should carefully consider whether an employee's request for leave is covered under both the ADA and the FMLA. While an indefinite leave of absence is generally not a reasonable accommodation under the ADA, employers should at least consider the effect the ADA may have on a FMLA request. If an employee is covered under the ADA and the FMLA, the employee may request an extension of FMLA leave under the ADA as a reasonable accommodation. See 29 C.F.R. ' 1603.2(o). An employer may deny the employee's request for an extension of unpaid leave if doing so would amount to an undue hardship or would render the employee unable to perform the essential functions of his or her job. See 29 C.F.R. ' 1603.15(d). An employer who has provided an employee with 12 weeks of leave under the FMLA may have a hard time proving that an extension of leave would create an undue hardship. Therefore, employers should be cautious when deciding whether to deny intermittent leave requests.

Conclusion

While dealing with intermittent leave is one of the most difficult issues that HR staff faces, there are certainly some opportunities for employers to control employee abuse. Requiring thorough and clear medical certification may put employees on notice that the Company will strictly abide by the FMLA regulations and keep abuse to a minimum. In addition, employers who have an honest suspicion of abuse can require second or third opinions, and in some cases, employers can benefit from conducting an outside investigation. Finally, an indefinite request for intermittent leave may raise questions of whether the employee is even able to perform the essential functions of his or her job. FMLA issues are never easy to tackle, and employers must carefully consider all the facts before taking an adverse employment action, so when in doubt, seek legal counsel.

Ralph A. Morris, a member of this newsletter's Board of Editors, is a Partner in the Chicago office of Schiff Hardin LLP. He specializes in labor and employment law and is also an Arbitrator and Mediator and a member of the American Arbitration Association's panels for both. Ashley G. Eddy is an associate at the firm. She represents management in a wide range of employment and traditional labor matters.