When Do FMLA Intermittent Requests for Planned Treatment Unduly Disrupt Operations?

By Marti Cardi, Esq., Vice President, Product Compliance, Matrix Absence Management, Inc.; Lana L. Rupprecht, Esq., Director, Product Compliance, Matrix Absence Management, Inc.

Intermittent leave under the Family and Medical Leave Act (FMLA) continues to challenge employers. Regulations require employees who need leave for planned treatment to make reasonable efforts to schedule treatment in a manner that does not unduly disrupt operations,¹ but employers still struggle with employees who fail to follow this process.

Consider this scenario. Mary, an emergency room nurse, works for ABC Hospital. She attends regular therapy sessions for her fibromyalgia every Thursday at 3:00 p.m., which is one of the busier times for the hospital. Recently, Mary started having flare-ups requiring as-needed treatment. During the last four months, her as-needed treatments are always scheduled for late Friday afternoon.

Mary did not clear the Thursday appointments or other sessions with the hospital in advance. She simply told the hospital she would be absent every Thursday and often calls in the as-needed treatments a few minutes before her shift. Mary’s sporadic schedule is disruptive to business operations and results in staffing shortages and patient delays.

What recourse, if any, does the hospital have?

Step 1: Look at Planned Treatment Requirements in the Regulations.

Mary must make a reasonable effort to schedule planned, regular medical treatment so as not to “disrupt unduly” hospital operations. She also must consult with the hospital before scheduling treatment and work with her supervisor on a mutually agreeable schedule.

To follow FMLA regulations, the hospital should initiate discussions with Mary and require an attempt to make different arrangements for planned treatments.² If Mary fails to do so, the hospital can deny FMLA coverage for her foreseeable absences for planned medical treatment. 

In other words, the hospital is well within its rights to ask Mary to reschedule regular therapy sessions at a more convenient time because the 3:00 p.m. Thursday sessions unduly disrupt operations.

The hospital should consider entering into a written agreement with Mary to document the agreed-upon schedule — an approach that provided helpful evidence in at least one case.³

Step 2: Enforce Policy and Call-in Procedures Consistently.

But what about Mary’s sessions that seem to fall only on Friday afternoons? This is a bit trickier. As-needed sessions are likely considered unforeseeable leave rather than planned treatment, which means Mary must provide notice as soon as practicable.⁴

In this situation, the hospital should ask Mary why she calls these in only a few minutes before her shifts on Fridays.  That is unlikely to be considered “as soon as practicable.” The hospital should also make sure Mary is following its call-in procedures and ensure procedures are clearly communicated and consistently applied to all employees. If she is not following the call-in process, inform Mary that failure to do so can lead to corrective action unrelated to the FMLA.

Step 3: Seek Recertification!

Given Mary’s as-needed therapy sessions are always on Friday afternoons, the hospital could treat this as a reason to cast doubt on Mary’s stated reason for the absence and use the recertification process.^5,6

Step 4: Consider an Alternative Available Position.

If scheduling challenges with Mary continue despite the efforts described above, the hospital should consider transferring Mary to an alternative available position to accommodate her schedule and treatment requirements.⁷ Equivalent duties are not required but an alternative position must have equivalent pay and benefits, and the hospital should consider any obligations it may have under the Americans with Disabilities Act before making this transfer. The FMLA requires employers to return employees to the same jobs they left or jobs that are nearly identical with criteria to follow.⁸

Employers are not without recourse in this situation but should confer with employment law attorneys and human resources professionals before making any final decisions.

References

1. 29 CFR § 825.203 and 29 CFR § 825.302(e)
2. 29 CFR § 825.302(e)
3. Amley v. Sumitomo Mitsui Banking Corporation, No. 1:2019cv03777 – Document 146 (S.D.N.Y. 2021): Justia
4. 29 CFR §825.303(a)
5. 29 CFR 825.308(c)(2)-(3)
6. U.S. Department of Labor. Opinion Letter. May 25, 2004. Retrieved from https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/2004_05_25_2A_FMLA.pdf
7. 29 CFR §825.204
8. S. Department of Labor. Need Time? The Employee’s Guide to the Family and Medical Leave Act. Retrieved from https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/employeeguide.pdf