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Total Articles: 18

Are You Coming In Today? An FMLA Intermittent Leave Toolkit

Intermittent leave continues to present some of the most exasperating FMLA issues. In March, the San Diego-based Disability Management Employer Coalition (DMEC) issued a white paper showing the findings of its annual 2016 Employer Leave Management Survey, which involved 1,132 U.S. employers of all sizes.

Employers Beware: Intermittent FMLA Absences Not Subject to “Proof of Need”

On January 27, 2017, the Eleventh Circuit Court of Appeals issued a decision that provides a cautionary tale to employers about seeking documentation from an employee on intermittent FMLA leave. In Diamond v. Hospice of Florida Keys, Inc., Case No. 15-15716 (11th Circuit, Jan. 27, 217), the Court held that an employer’s request for “proof of need” related to an employee’s intermittent absence was evidence of interference with the employee’s FMLA rights and thus precluded summary judgment for the employer.

Be Wary of Potential FMLA Violation before Terminating an Employee for Failure to Meet Performance Standards During Intermittent Leave

It is well established that the FMLA does not require an employer to reduce its performance expectations for an employee who is taking leave intermittently or on a reduced schedule. Additionally, during the time the employee is at work, the employee must be capable of continuing to perform the essential functions of the job.

Combatting Intermittent FMLA Leave Abuse: An Employer’s Toolbox

As most employers know, the Family Medical Leave Act (FMLA) allows employees to take up to 12 weeks of leave for their own or a family member’s serious health condition and up to 26 weeks for military caregiver leave. While longer FMLA leaves are relatively straightforward, an employee’s ability to take small increments of FMLA leave on a sporadic basis generates administrative headaches for employers and raises concerns about employee abuse.

Handling Intermittent, Unpredictable Leave Requests after FMLA Ends: Additional Analysis of My Webinar with EEOC Commissioner Feldblum (Part II)

Thanks again to those who attended my June 23 webinar with EEOC Commissioner Chai Feldblum on the topic of “leave” as an ADA reasonable accommodation in light of the EEOC’s new technical resource issued on this topic in early May 2016. If you missed the program, you can access the webinar and materials here.

FMLA FAQ: How Does an Employer Calculate Intermittent FMLA Leave When an Employee Moves from Full-Time to Part-Time?

Q: One of our employees was at full-time status (40 hrs/wk.) six months ago when he was granted intermittent FMLA leave for a GI issue that flared up from time to time.

FMLA FAQ: Must an Employer Provide Intermittent FMLA Leave So An Employee Can Attend to an Autistic Child?

Q: One of our employees, a front desk receptionist, maintains an erratic work schedule because she must attend to her autistic son. In short, her son throws a tantrum at school if his mom does not personally drop him off and pick him up from school. For instance, he hides under a table, refuses to participate, and becomes very aggressive when his mom doesn’t not drop him off and pick him up.

Strategies For Continuous (And Intermittent) Medical Leaves

Have you ever scheduled an early-shift employee to cover for a late-shift employee who has just taken medical leave? The covering employee probably was not excited to have to work that extra shift. While the logistics of employee schedules can be difficult, it can be even more burdensome (and more important) to handle the employee’s medical leave appropriately and in accordance with the law.

FMLA FAQ: Can an Employer Require a Doctor's Note for Each Intermittent FMLA Absence?

Over the past few weeks, I have had the pleasure of presenting on complex FMLA issues for attorneys and HR professionals attending several seminars sponsored by the National Employment Law Institute (NELI), which puts on some of the best employment law seminars in the country (my session, of course, being a drag on their success!). During one of the sessions, an attendee asked a thoughtful question that seems to come up from time to time in my practice:

Managing Intermittent Leave Without Intermittently Losing Your Mind

Attendees at last week’s webinar identified FMLA as their #1 problem area.

FMLA FAQ: Can Excess Trips to the Potty Be Counted as FMLA Leave?

Q: One of our employees drinks a lot of water at work and goes to the bathroom continuously throughout the day. As a result, she uses far more than her normal breaks allow.

Curbing Abuse Of "Intermittent" FMLA Leave

The Family Medical Leave Act (FMLA) allows employees to take 12 weeks of leave for their own or a family member’s serious health condition and up to 26 weeks for military caregiver leave. The leave can be taken in one block, over several stretches of time or intermittently. To take intermittent leave, the employee need only provide a certification that there is a medical need for such leave.

Managing Intermittent Leave Without Intermittently Losing Your Mind

Tips on how to manage intermittent leave under the FMLA.

Managing Intermittent Leave Without Intermittently Losing Your Mind

A step-by-step guide to managing FMLA intermittent leave.

FMLA FAQ: How Many Intermittent FMLA Leave Hours is an FLSA-Exempt Employee Entitled To?

Q. We employ an FLSA-exempt employee who has been certified for intermittent FMLA leave for migraine headaches. He averages two to three intermittent absences per month. Normally, I would calculate the employee's total FMLA allotment as 480 FMLA hours (12 weeks x 40 hrs/wk), but he claims he should be entitled to 600 FMLA hours because he averages 50 hours worked per week. Is he correct? Help!?!

FMLA FAQ - When to ask for a Second Opinion

An employee has asked for intermittent FMLA leave due to a serious health condition. He has turned in a medical certification, but the doctor who signed it is his general practitioner, not a specialist in the condition for which he is seeking leave. Can I ask for a second opinion?

Appeals Court Rejects Claim For Long-Term Intermittent Leave.

Managing long-term intermittent leave has long been one of the central problems for employers administering FMLA leave. Particularly problematic is the employee who presents a certification suggesting that he or she will need unscheduled leave with little or no notice to the employer over a period of months or years based upon self-diagnosed, unverifiable symptoms such as pain or fatigue. A recent decision by the 8th Circuit Court of Appeals suggests that, at least in some cases, such a leave request need not be granted because the need for frequent, unscheduled, unpredictable leave over an extended period of time can render an employee unqualified for duty.

FMLA Eligibility for Intermittent Leave is Recalculated at the Commencement of the First Absence in a Designated 12-Month Period.

The purpose of the FMLA is to balance the demands of the workplace with the needs of the family. Absences under that act provide reasonable leave for medical-related reasons, while accommodating the legitimate business interests of the employer. Under the FMLA, an employee’s eligibility for the allowable leave is based, in part, upon having worked a minimum of 1250 hours during the 12-month period immediately prior to the leave request.
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