The Never-Ending Nature of Intermittent Leave

Heather Grimshaw

Episode description: Despite best intentions, intermittent leave can disrupt the most productive teams, and some say it’s more susceptible to abuse. Yet creating policies with clear, regular communication can help employers ensure that everyone comes out whole, explains Lana Ruprecht, director, product compliance counsel, Reliance Matrix; and Marti Cardi, senior compliance consultant and legal counsel, Reliance Matrix.

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Welcome to Absence Management Perspectives: A DMEC Podcast. The Disability Management Employer Coalition, or DMEC, as we're known by most people, provides focused education, knowledge and networking opportunities for absence and disability management professionals. DMEC has become a leading voice in the industry and represents more than 18,000 professionals from or organizations of all sizes across the United States and Canada. This podcast series will focus on industry perspectives and provide the opportunity to delve more deeply into issues that affect DMEC members and the community as a whole. We're thrilled to have you with us and hope you'll visit us at to get a full picture of what we have to offer, from webinars and publications to conferences, certifications, and much more. Let's get started and meet the people behind the processes.

Heather Grimshaw: Hi, we're glad you're with us. I'm Heather Grimshaw, Communications Manager for DMEC, and today we're going to talk about intermittent requests for planned treatment that unduly disrupt an employer's operations. These requests are covered under the Federal Family and Medical Leave Act, or FMLA. We've asked Lana Ruprecht, director and Product Compliance Counsel, and Marti Cardi, Senior Compliance Consultant and Legal Counsel with Reliance Matrix, to join us for this discussion. They broached the topic in a recent column in @Work magazine, and we plan to unlock that column for listeners and include a link to it in the Notes section of this episode. So to kick us off, the question of intermittent leave, which again is covered by the federal FMLA, seems to be a common headache for absence and disability managers. Would you give a quick, high-level overview of why to set the stage for our conversation today?

Marti Cardi: Heather. This is Marti. I'll jump in and I can provide some thoughts on this, and then Lana can chime in as well. First, as a general rule, intermittent leave is generally not predictable. An employee with a serious health condition often cannot know when or she will have a flare and or not feel well and be unable to work because of that serious health condition. This unknown quality of intermittent leave places a burden on the business regarding staffing and productivity, and it can also impact the morale of other workers who don't understand why their coworker is so often absent and that they may be having to carry a heavier workload because of that. So that really can be a challenge to the workers because of that. Another reason intermittent leave is a challenge for employers is that an employee will continue to replenish FMLA while using intermittent leave, and in some cases may not ever exhaust FMLA. So it can in effect, become a never ending job restructuring to a part time position and sometimes an irregular part time position without much say by the employer. This never-ending nature possible never ending nature of the FMLA intermittent leave was recognized by the US. Department of labor in its recent opinion letter issued on February 9 of this year. They acknowledged that an employee may continue to use FMLA leave for an indefinite period of time as long as they continue to be eligible and have a qualifying reason for leave. So let's put a practical spin on this. Take, for example, an employee working a typical 40 hours week who is approved for FMLA intermittent leave or reduced schedule of up to 8 hours per week. That employee working a 40-hours week has an entitlement of twelve weeks or 60 days of FMLA in a 12-month period. And by taking just one day a week every week off for all year, that employee is using only 52 of those 60 days and replenishing weekly using the rolling back method. Or at the beginning of a new leave year using the other calculation method. So it's entirely possible for intermittent leave to be never ending. Lana, why don't you jump in and explain what other factors make intermittent leave such a headache for employers.

Lana Ruprecht: Thank you, Marti. Another problem that I see is dealing with when we're dealing with intermittent leave is that it's just more susceptible to abuse than continuous leave or even a fixed reduced schedule due to its nature. Right? It's used mostly when there's an unpredictable flare up. And as Marti mentioned, we don't know when that's going to happen. The employee often doesn't know when that's going to happen. Providers can give an estimate in the certification of what they think the anticipated frequency and duration of the flare ups or need for intermittent leave may be. But there's no precision to this or no set rules, which makes it difficult. And as an employer, you can't require a medical note for each absence. In fact, the employee probably doesn't even see a doctor for most of these flare ups. So as a result, an employee can actually be tempted to take time off and call something as FMLA, even if it may not actually fall into that description in the certification. And on the other side of the coin, the employer can be concerned that that is what is actually happening is the employee doesn't want to come into work, so they're saying they're having a flare up. Or there's another personal matter, even though it doesn't have anything to do with FMLA. So those are some problems that can arise when an employer is dealing with intermittent leave.

Heather Grimshaw: I'm wondering, Lana, you mentioned that this intermittent leave is more susceptible to abuse and that there's a tendency to worry about this more with intermittent leave because there is more room for or potential for that abuse. Am I understanding that correctly?

Lana Ruprecht: Great question, Heather, and yes, absolutely. First, I think employees who want to abuse leave privileges are their problematic employees. They are the ones that are more likely to use this as an opportunity to abuse the intermittent FMLA rather than they would with continuous FMLA just due to its sporadic and unpredictable nature. And on the other side of the coin employers, even if an employee is not abusing FMLA, they may assume that there's abuse because, again, it's sporadic, it's unpredictable, and it may, in some situations, cause trouble with staffing, with coworkers business operations. It may make it difficult. And so it makes the employer wonder, hey, is the employee abusing this? Why are they making my life difficult? So I think there's two sides to that.

Heather Grimshaw: That sums up the issues that employers face with intermittent leave. For today's conversation, we'll focus on employee requests for planned or scheduled medical treatments for serious health conditions and would love your input on how an employer should handle these situations if and when they unduly disrupt operations.

Marti Cardi: Well, Heather, you're right that there is a difference here. When the situation is dealing with planned medical treatments and the employees hands, employers hands aren't quite so tight in that situation. In the case of planned medical treatment, the FMLA does provide some tools to assist the employers, and there are four key regulations at play here. So the first of those four key regulations you're probably familiar with the regulation that generally requires a place to provide 30 days advanced notice of foreseeable leave or as much notice as practicable if 30 days is not possible. And that requirement is directly incorporated into the regulations for planned medical treatment, which by its nature is foreseeable to some extent, as compared, for example, to an emergency room visit. The second tool the regulations provide is that they do support the employer's ability to enforce its usual absence reporting procedures, and impose discipline if the employee doesn't follow those procedures. Next is the tool, the regulation that states that employees must try to schedule the treatment so as not to disrupt the employer's business unduly. And we'll talk a little more about that. And then finally, the last tool the regulations provide is the employer's ability to transfer the employee to a temporary equivalent position that better suits the employee's treatment schedule. As a result, if the intermittent leave involves planned medical treatment, employers do have additional options to manage that leave and make it less burdensome and less disruptive that they may not have realized exists.

Heather Grimshaw: So in the column, which features lessons learned from case law, you suggest that employers should initiate a discussion with an employee whose intermittent leave for planned treatment has started to interfere with business operations. One of the takeaways is that employers have rights to ensure that employees leave does not interfere with operations. Is that a point of confusion for employers that you all have noted?

Marti Cardi: I think so. And if not confusion, just completely being unaware of their rights. In that regard, we can't expect employers to be experts on the FMLA regulations without specialized inside resources, which many employers don't have. So some employers may not be aware of the specific language in the FMLA regs that benefit employers when it comes to planned medical treatment, but they should become. And we're hoping this podcast and our related materials will help employers become familiar with what tools those regulations do provide and adopt policies accordingly. And that can be extremely helpful. For example, as I mentioned, the regulations require an employee to consult with his or her employer and make a reasonable effort to arrange planned medical treatment on a schedule that does not disrupt the employer's operations so much. This puts the burden on the employee to initiate discussions. And of course, this is probably not known to most employees or even to most employers. So employers should have this written as an end of policy in their policies and procedures and handbook and so forth, and make sure that that requirement is clearly communicated. And then if the employee fails to consult or make efforts to arrange the treatment schedule this way, the regulations state that employers may initiate discussions with the employee about the treatment schedule. So employers should take advantage of this tool in the regulations also, and I'm sure our listeners have lots of questions regarding what that discussion looks like. Our two document covers that as well, addressing such things as what employers can ask the employee, what kind of support they may get from the employee's provider and so on. Third, the regulations provide that with planned medical treatment, an employer may temporarily transfer the employee to an alternative vacant position for which the employee is qualified and which better accommodates the recurring periods of leave the employee's regular position does. Now, this may or may not be a practical alternative and needs to be carefully evaluated on a case by case basis, depending on the nature of your business and the nature of the employee's position, et cetera. The alternate position does not have to have equivalent responsibilities, but it does need to provide equivalent pay and benefits. And this just may not be feasible for sporadic or occasional medical treatments, but maybe for an employee with regular or frequent treatment schedule, such as an employee receiving dialysis or chemotherapy, this option may provide the employer a good staffing management tool that they're not aware of or don't know quite how to work with it. So again, employers should address these requirements in their written FMLA policy and remind employees of the duty to consult and schedule plan treatment in a way that's less disruptive to the business when that employee requests FMLA leave.

Heather Grimshaw: I think the reference to a staffing management tool and the ability to put some of this language into policies and to communicate that to employees is really helpful. Thank you for that. So one of the recommendations is for employers to have discussions with employees whose appointments to manage flare ups associated with serious health conditions are disrupting operations. And I'm wondering I know there's some concern on the part of employers. This was one of the things that was flagged by our editorial advisory group with the column. If there are guidelines for that so that employers feel a little bit more comfortable having those kinds of conversations with employees.

Lana Ruprecht: Heather, that's a great question and the regulations touch on this, but don't get really dive into specific point by point guidance on that. First, employers should make sure that they have an internal policy that's in their handbook that's provided to employees that employees know about that really describes the requirements for planned medical treatments and what the obligations are on employees. This policy should be consistent with the FMLA regulations and employees should be reminded of these requirements at the time they request FMLA leave, at the time they say they have some planned medical treatment. Let employees know about these requirements. And second, although the regulations do put the burden on the employee to initiate discussions with employers about planned medical treatment, it's likely the employee may not do this. So under the regulations, if an employee fails to do this, the employer may start the conversation. And so the employee can hold an informal or in person online meeting phone call. They can ask the employee to reschedule regular sessions that they have scheduled at a more convenient time if in fact, the time that they are attending these is disrupting operations. And then again, according to the FMLA regulations, this is all subject to approval of the healthcare provider. So you will need to make sure as an employer, any change is approved and acceptable as well. What's so important is the tone of the discussion. It should be very open. You should be working with the employee. It should be friendly, interactive, very similar to the interactive process discussion that employers have with employees under the Ada.

Heather Grimshaw: That's great input, and I really appreciate that suggestion of the tone of the conversation. It does seem like this can be a bit of a contentious issue. And to ensure that you're approaching employees in a way that is collaborative and friendly, I think will resonate with listeners. So thank you for that. I'm also curious about the team members that should participate in these types of discussions with employees who have needs for intermittent leave. Should managers be included in these discussions or is it mainly human resources and absence management specialists?

Marti Cardi: I'll jump in here. I would say that you really want both of those categories of individual included in the discussion. You want to have an in person or online meeting so that there can be discussion. And you want an HR representative or absence management specialist involved. Someone who understands the FMLA and what they're trying to accomplish in the discussion. The ability to insist on working together to try to arrange planned medical treatment that doesn't interrupt the business operations unnecessarily. So definitely want someone online in the meeting who has that background knowledge. And then in addition, absolutely the employer's manager should be included or at least consulted about whether the treatment schedule under consideration will work for the department and minimize that business disruption. You don't want that employer's manager, employees manager to be the one running the discussion or the only one involved in the discussion. You really want that HR or absence specialist involved to lend the expertise and keep it on the right rails.

Heather Grimshaw: I think that's great input, Marti. Thank you for that guidance. I do think the question of who should be involved at what point is the handoff. Those are frequent questions that I hear from members of DMEC, and so I think that'll be really helpful. And it also leads me to my next question, which is, is there a point at which an employer can ask the employee to delay or to deny the FMLA time off request if the employee isn't cooperating with scheduling and overtures by the employer?

Lana Ruprecht: So, Heather, this is Lana. I'll jump in on this. That's a really good point and a really good question. This is actually unclear from the regulations and case law that we looked at. The FMLA regulations do not specify whether an employee can actually delay or deny leave due to an employee's failure to schedule the time off without disrupting business operations or due to the employee's failure to cooperate in the discussion at all. The regulations again, say that the employer may initiate discussions require the employee to attempt to make arrangements for the planned medical treatment. So there are some teeth in the regulations, but it doesn't go quite that far. So if you are at this point as an employer and considering whether this step should be taken, definitely consult with your attorney, employment law counsel. Also, if you have policies that clearly say that an employee must do X, Y, and Z when scheduling planned medical treatment, that may be the place to go if there's any adverse action or delay or denying of FMLA leave. But again, you have to consult with your attorney. And this is just in contrast. When an employee fails to notify the employer about FMLA leave, the regulations in that instance do specifically allow the employer to delay or deny FMLA time due to lack of notice and for not following the regulations. So again, it's unclear. Bottom line, consult with your attorney and be very careful when you're working in this area.

Heather Grimshaw: Yeah, I think that caution is really important. I like the way that you say the teeth in the regulations as well as the pieces that are unclear, which certainly I can only imagine from an employer's vantage point, leads to that concern with having those conversations. So thank you for that. And I'm curious. You mentioned the need and importance of consulting with the legal counsel. Do you know how frequently this issue leads to lawsuits? And are there examples of what employers could have done differently in those situations to avoid that legal issue?

Marti Cardi: Although planned medical treatment and the regulations we've been discussing are mentioned in several court opinions, we haven't found any cases where this issue, by itself is the primary subject of a lawsuit or determinative of the outcome of the lawsuit. Usually other issues are dominant and guide the result in lawsuit. But let's say no employer wants to be the test case and so it is wise to walk carefully through the process and make sure that you're giving the employee every opportunity to cooperate. And generally an employee has to be disciplined, terminated or denied FMLA benefits before they have an FMLA interference or retaliation claim. The best way to avoid a lawsuit is have open communications with the employee. Follow the regs, and if you come to an agreement the employee about planned medical treatment. Treatment schedule. Consider preparing a written agreement memorializing the agreed schedule that you and the employee both sign. And that way you've got it written down as to what was agreed upon and can hold the employee to that. There may need to be variations and obviously the FMLA and the Department of labor would expect employers to be a little bit flexible in reasonable situations. But having that written agreement as to the schedule you've agreed on can be a tremendous tool.

Heather Grimshaw: And so in terms of that timing and not to be overly specific, but when should employers consult with legal experts in this process?

Lana Ruprecht: It really depends on the specific facts. I would like to say throughout the process you should consult with employment counsel or legal experts but you want to be safe than sorry. But if we're looking at key times when an employer should ask for advice is one if they are going to take an adverse employment action or are considering an adverse employment action or deny or delay leave. So if they're going to discipline an employee, terminate an employee even if the reason is unrelated to the leave or unrelated to unexcused absences and has absolutely nothing to do with it. If you have an employee that's out on FMLA and there's been issues with plan, not scheduling, plan, medical treatment timely and anything along those lines, you'd want to consult with an employment attorney just to make sure you have everything lined up. So I think that's one really key time to consult with a legal expert. Another time is if discussions about the planned medical treatment or the intermittent leave is just not going well with the employee, they're not cooperating and providing you the information about the scheduling or they'll say they're going to have schedules at this time, but then they're leaving at different times and you're just having a communication breakdown. I think it's a good time to get a legal expert involved and then another time is historically if this employee, you've had this employee and they have been problematic in other areas in the past and you feel like this could be a high risk situation, that's another great time to get legal experts involved. Again, like Marti said, you don't want to be the test case, you don't want to be involved in litigation if you don't need to be.

Heather Grimshaw: Always better safe than sorry. And to ensure that you're providing that employee with support and also protecting the employer and the existing staff members who are helping to cover for that person. So this has been a great conversation. I really appreciate the tips and guidance that you both have shared with us today. Thank you so much for taking the time to elaborate on this question of intermittent leave.

Marti Cardi: Thank you. It was our pleasure.

Lana Ruprecht: Yes, thank you.