by Robin Phillips
The Family and Medical Leave Act (FMLA) requires some employers to grant eligible employees unpaid leave for family and medical reasons, including intermittent leave. By understanding FMLA’s rules, you, as an employer, can minimize your inconvenience and avoid violating the act.
Learn the requirements
If you employ 50 or more employees, the FMLA rules specifically require you to allow “intermittent leave,” defined as “FMLA leave taken in separate blocks of time” because of a single qualifying reason. Essentially, the act enables employees to take predictable or sporadic blocks of time as unpaid leave — in hours, days or weeks — if medically necessary for weekly physical therapy sessions or random flare-ups of conditions such as asthma, for example.
But your hands aren’t completely tied — you retain some rights. When a worker asks for intermittent leave, for example, you can request medical certification, including the projected number and dates of treatments and a projected period of recovery for each treatment. You may request recertification of intermittent leave once every 30 days to ensure the need continues. If not medically necessary, a worker can take intermittent leave only with your consent.
Further, when faced with intermittent-leave requests, you may:
o Dock the pay of employees exempt under the Fair Labor Standards Act for the leave without their exempt status,
o Limit leave increments to the shortest period your payroll system uses to record absences or leave — as long as it represents one hour or less, and
o Require an employee requesting leave to work with you to devise a leave schedule that minimizes operational disruptions.
Bear in mind, employees who can receive treatment during nonwork hours must do so.
Consider temporary transfers
Because intermittent leave may be disruptive, the rules also allow you to temporarily transfer employees. If intermittent leave is foreseeable based on planned medical treatment, you may require employees to temporarily transfer to available positions — with equivalent pay and benefits — for which they are qualified and that better fit the leave schedule. The temporary-position duties needn’t be equivalent to the employee’s regular duties, but you can’t transfer an employee in retaliation or to deter the taking of leave.
Alternatively, you may create a part-time position based on the number of hours the employee can work during leave — with the same hourly wage and benefits — even if you don’t typically offer all the benefits to part-time workers. But you may proportionately reduce benefits based on number of hours worked to reflect the hours actually worked during leave.
Give proper notice
Regardless of how FMLA leave is taken, you must notify employees within a reasonable period — say one or two business days after learning of the need for leave — that their leave will count against their FMLA allotment. If an employee is entitled to paid leave, you must designate in writing whether the company will consider it to be FMLA leave. You or the employee may opt to substitute accrued paid leave for FMLA leave under some circumstances.