Law Firm of Keller W. Allen, P.C S. Regal St., Suite 211 Spokane, WA

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2 The Problem Employee Who Abuses FMLA Intermittent Leave Presentation by Keller W. Allen 5915 S. Regal St., Suite 211 Spokane, WA Tel: Fax:

3 Intermittent leave under the FMLA is one of the most discussed topics among our clients. While longer blocks of FMLA leaves are relatively straightforward, an employee sporadically taking small increments of FMLA leave creates administrative headaches and raises concerns of intermittent leave abuse.

4 It s no surprise that intermittent leave causes confusion and frustration. The FMLA statute, regulations, and the federal court opinions on intermittent leave create more questions than answers, and place a number of frustrating limitations on employers attempting to control the abuse of intermittent leave.

5 FMLA Basics

6 FMLA Basics Covered Employer The FMLA only applies to employers that meet certain criteria. A covered employer is a: Private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer; Public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or Public or private elementary or secondary school, regardless of the number of employees it employs.

7 FMLA Basics Eligible Employees Only eligible employees are entitled to take FMLA leave. An eligible employee is one who: Works for a covered employer; Has worked for the employer for at least 12 months; Has at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave; and Works at a location where the employer has at least 50 employees within 75 miles.

8 FMLA Basics Leave Entitlement Eligible employees may take up to 12 workweeks of leave in a 12-month period for one or more of the following reasons: The birth of a son or daughter or placement of a son or daughter with the employee for adoption or foster care; To care for a spouse, son, daughter, or parent who has a serious health condition; For a serious health condition that makes the employee unable to perform the essential functions of his or her job; or For any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status.

9 FMLA Basics Manner in which leave can be taken FMLA leave can be taken in one block, over several stretches of time, or intermittently. Intermittent leave is leave taken in separate blocks of time due to a single qualifying reason.

10 FMLA Basics Notice to Employer An important issue related to intermittent leave is the type of notice an employee must give her employer. The required notice differs based on whether the need for FMLA is foreseeable or unforeseeable.

11 FMLA Basics Notice to Employer An employee must give the employer at least 30 days advance notice when the need for leave is foreseeable.

12 FMLA Basics Notice to Employer If 30 days notice is not practical because of a lack of knowledge or uncertainty about when the leave will begin, notice should be given as soon as practicable. That means both as soon as possible, and as soon as practical, taking into account all of the facts and circumstances in the individual case.

13 Example where there is a proper usage of intermittent leave. 13

14 Consider the following: Jerry is undergoing weekly dialysis treatment. Jerry has an appointment at the clinic every Thursday from 11:30 a.m. until 1:00 p.m.

15 But there is intermittent leave abuse that can disrupt business. 15

16 Consider the following: Gary claims he suffers from depression and panic attacks. Oddly, Gary s conditions only seem to affect him on Fridays and Mondays. What s more, Gary s conditions manifest without warning. Usually, that means they manifest between an hour and thirty minutes prior to the time that work starts. Gary s doctor noted that Gary will be afflicted with his conditions for the remainder of his life.

17 Is Gary s employer at the whim of Gary lastminute cancellations for the rest of his career? That is to say, do these circumstances create a right to a permanent part-time job for a position that requires full-time status?

18 Until recently, some court decisions stated yes. However, recent court decisions state the opposite --- that FMLA cannot be taken on a forever basis based on a singular leave request.

19 Intermittent Leave In Beem v. Providence Health & Servs., 2011 U.S. Dist. LEXIS (E.D. Wash. Oct. 13, 2011), the plaintiff frequently exceeded the number of "tardies" allowed under the employer s policy because of various medical conditions.

20 Intermittent Leave Plaintiff requested intermittent leave to cover her tardies under the FMLA. The court reviewed the purpose of the FMLA and found that other courts have been reluctant to read the FMLA as allowing unscheduled and unpredictable, but cumulatively substantial absences, when the Americans with Disabilities Act protects only persons who over the long run are capable of working essential functions of their job, i.e. fulltime.

21 Intermittent Leave The court dismissed the FMLA claim, concluding that FMLA leave would not cover her unscheduled, unpredictable tardiness.

22 Intermittent Leave Frequent, unpredictable intermittent leave can also render an employee unqualified for duty.

23 Intermittent Leave A decision by the 8th Circuit Court of Appeals suggests that, at least in some cases, a leave request for frequent, unscheduled, unpredictable leave over an extended period of time need not be granted because the need for such leave can render an employee unqualified for duty. Wisbey v. City of Lincoln, Neb., 612 F.3d 667 (8th Cir. 2010).

24 Intermittent Leave In Wisbey, the plaintiff applied for FMLA leave from her job as a dispatcher. Her leave application stated that her depression and anxiety made her unable to perform the essential functions of her job.

25 Intermittent Leave She also submitted a note from her doctor stating that she suffered from a recurring cycle of depression and anxiety that interfered with her sleep, energy level, motivation, and concentration. The doctor further indicated that while Wisbey could perform the essential functions of her job, she would need intermittent time off for the next 6 months or longer.

26 Intermittent Leave According to the court, the FMLA does not provide leave for leave s sake, but instead provides leave with an expectation that the employee will return to work after the leave ends.

27 Intermittent Leave The court concluded: The FMLA does not provide an employee suffering from depression with a right to unscheduled and unpredictable, but cumulatively substantial, absences or a right to take unscheduled leave at a moment s notice for the rest of her career. On the contrary, such a situation implies that she is not qualified for a position where reliable attendance is a bona fide requirement.

28 Intermittent Leave There are other cases consistent with this case, mostly from the 7 th and 8 th Circuits. In an Iowa state case, Hayes v. Vermeer Mfg. Co., 817 N.W.2d 495 (Iowa Ct. App. 2012), the court held that the FMLA does not entitle an employee to take unscheduled and unpredictable, but cumulatively substantial absences or a right to take unscheduled leave at a moment's notice for the rest of [his] life.

29 In addition to knowing that a single FMLA certification may not entitle an employee to unending FMLA leave, here are some other strategies employers can use to curb intermittent leave abuse. 29

30 Strategies for reducing intermittent leave abuse. 30

31 Medical Certification Medical certification is a tool the employer can use to verify an employee s leave eligibility and whether the circumstances support the use of intermittent leave.

32 Medical Certification Upon receiving a request for intermittent medical leave, an employer is permitted to require a certification from the employee s health care provider stating that intermittent leave is necessary for a qualifying reason.

33 Medical Certification Intermittent leave must be medically necessary. Leave for a voluntary treatment or procedure does not qualify.

34 Medical Certification It is more than just having a medical need --- it must be that such medical need can be best accommodated through an intermittent schedule. That is to say, it is not all about the employee s convenience or preference.

35 Medical Certification If an employee requests intermittent leave for planned medical treatments for his or her own health condition, the certification must include the dates on which such treatment is expected and the duration of the treatment.

36 Medical Certification If the employee requests intermittent leave for his or her own health condition --- but not for scheduled medical treatments --- the certification must state that there is a medical necessity for such leave and must include a statement of the expected duration of the intermittent leave.

37 Medical Certification Remember, even if the certification states the condition is on-going, that certification is only valid for that FMLA year. An employer may require a new certification once the next FMLA year begins.

38 Medical Certification Employers can also protect against improper intermittent leave by verifying a suspect medical certification.

39 Medical Certification Employer can submit to employee s health care provider dates and hours of work missed with request to confirm if the absences are consistent with condition.

40 Medical Certification If the certification has entries missing, or is vague, or ambiguous, the employer may ask the employee to provide complete and sufficient information.

41 Medical Certification The request must be in writing and must specify the reason the certification was considered incomplete or insufficient. The employee must then provide the additional information within seven days. Failure to do so may allow delaying or denying the leave.

42 Medical Certification If necessary, an employer (only certain parties -- not the employee s supervisor) may contact the employee s healthcare provider to ensure that he or she actually prepared the certification, and to clarify the meaning of a response.

43 Medical Certification If the employer has a proper reason to doubt the validity of an initial certification, it may ask for a second and third opinion.

44 Medical Certification The physician may be of the employer s choosing, but cannot be one that the employer uses on a regular basis. The employer is responsible to pay for the second opinion. If the first and second opinions differ, the employer may require the employee see a third health care provider --- again at the employer s expense --- whose opinion will be binding.

45 Temporary Transfer Employers have the ability to transfer employees who are using intermittent leave to other positions within the organization that will better accommodate intermittent absences.

46 Temporary Transfer The new position to which the employee is transferred must provide equivalent pay and benefits and better accommodate the employee s altered schedule. The transfer may not be used to discourage the use of leave or to retaliate against the employee for exercising leave rights.

47 Temporary Transfer Employers cannot transfer an employee to a position which will impose a hardship on the employee. For example, the transfer is not proper if it caused the employee s commute to be longer in time or cost more because the employee used public transportation but now must use a car to get to the temporary position.

48 Temporary Transfer At the end of the intermittent leave, the employer is required to reinstate the employee to the same or an equivalent position as the job that she left when the use of FMLA leave began.

49 Questions? 5915 S. Regal St., Suite 211 Spokane, WA Tel Fax: