• Intermittent Leave Will Test Your Mettle
  • April 15, 2013 | Author: Larry S. Perlman
  • Law Firm: Foley & Lardner LLP - Miami Office
  • As the industry continues its steady recovery, automakers and suppliers have been running on all cylinders, with some plants operating 6 or 7 three day shifts per week. This increased workload makes it all the more important to have a full complement of employees to cover shifts. However, employees’ ability to take intermittent leave under the Family and Medical Leave Act (FMLA) has created unique challenges for companies.

    Under the FMLA (and in some cases, state leave laws) eligible employees may take up to 12 weeks of unpaid leave each year to care for their own or a family member’s serious health condition and to bond with a new or adopted child, as well as for certain military exigencies. Leave may be taken for certain periods, such as for a scheduled surgery, but also may be taken on an intermittent basis for unforeseeable reasons. ”Shortened workweek” is another form of intermittent FMLA leave and is used when an employee has medical restrictions that limit his or her ability to work all scheduled hours, including overtime.

    Some employees are also submitting medical certification forms from their health care providers that limit these employees from working more than a certain number of hours per week, such as 40 or 45 hours. Increased intermittent FMLA leave requests can create employee management nightmares. Employees may call off of work with little notice, causing manpower shortages that are often filled with higher cost temporary staffing employees who are unfamiliar with the supplier’s operations. While this might otherwise be manageable, it is particularly difficult when certain employees appear to be abusing FMLA leave to enjoy days off when the plant is operating at full throttle.

    Companies should consider taking the following actions to help minimize the risk of FMLA abuse:

    • Scrutinize the Medical Certification Forms. Health care providers who complete FMLA certification forms may provide inconsistent information. For instance, the form may state that the associate is not incapacitated from working, but then go on to request FMLA leave for 1 or 2 times per month, for up to 2 days per episode. Therefore, carefully review the medical certification form and do not hesitate to seek clarification or utilize your ability (or utilize the FMLA’s “second opinion procedure”) where necessary.

    • Require Employees to Identify Intermittent Leave as Being Taken Due to FMLA. Implement a policy under which any employee with approved intermittent FMLA leave must identify the leave as being taken pursuant to the policy when calling in. Additionally, require employees to certify in a signed writing, on return, that time off was taken pursuant to approved intermittent leave. This procedure allows for full tracking of all FMLA hours used, and may serve as a deterrent to improper use of leave time.
    • Enforce Reasonable Call-In Procedures. For instance, if no-call, no-show policy is in your attendance policy, then enforce it if an employee fails to call in.
    • Consistently Enforce Procedural Requirements for Leave. In addition to the above recommendations requiring identification of FMLA time, implement and enforce other procedural requirements for intermittent FMLA leave, such as requiring associates to provide a doctors note when they use intermittent FMLA leave time for a medical visit.
    • Judiciously Track and Review FMLA Usage. Optimally, one person should be dedicated to not only tracking, but also reviewing each employee’s intermittent FMLA usage on a regular basis. Doing so not only permits accurate calculations of time used, but also ensures that unusual/concerning patterns, such as exclusive use of Fridays and Mondays for leave, will be recognized and addressed.
    • Demand Recertification Under Appropriate Circumstances. Avoid a perception that you are lax in enforcing FMLA abuses. For example, do not hesitate to take advantage of your right to request more frequent recertification for the associate who is exclusively taking Friday and Monday leave days.
    • Adjust Pay Accordingly. FMLA leave is not required to be paid leave, and under many circumstances, an employer can even make deductions from wages for a few hours of intermittent leave without automatically jeopardizing an employee’s overtime exemption status.
    • Consider Attendance Incentives. Perfect attendance awards, with accompanying bonuses, may be offered to employees, and may be denied to employees who exercise FMLA leave (so long as other employees on non-FMLA leaves of absence also do not receive such bonuses).