Tuesday, May 17, 2011

Intermittent Family and Medical Leave - What You Need to Know

Not too long ago, TLNT published an article on the Top Ten Things That Trouble HR representatives.  Not surprisingly, how to deal with FMLA (and in particular intermittent leave) topped the list.  This is the first in an occasional series addressing HR's Top Ten.

This Video Looks At Intermittent Family and Medical Leave:



WHAT IS INTERMITTENT FAMILY AND MEDICAL LEAVE?

Intermittent Family and Medical Leave is unpaid leave that is provided to employees under the Family and Medical Leave Act who 1) have an ongoing serious medical condition that results in incapacitation and inability to work on a periodic basis; 2) have a child, spouse or parent with an ongoing serious medical condition that results in incapacitation and requires the employee to miss work in order to care for the ill family member.

Click Here to see the Department of Labor's regulations concerning FMLA.  Those relating to intermittent leave are found at 825.202 through 825.205.

HOW DO I APPLY FOR INTERMITTENT FAMILY AND MEDICAL LEAVE?

The best way to secure one's rights to intermittent leave is to make the health condition known to your employer, advising that the health condition may cause you to miss work from time to time either to deal with your own medical condition, or in order to care for a loved one with such a condition.  I recommend doing so in writing (e-mail or letter to HR).  Typically, you will need to provide some medical certification to support your request (a note form a health care provider setting forth what the condition is and that leave may be required from time to time).

Presented with such information, and provided all other FMLA requirements are met, the company should provide a "blanket" notification of your right to take Family and Medical Leave when the need arises.

HOW DO I TAKE INTERMITTENT FAMILY AND MEDICAL LEAVE?

Thereafter, when the need arises, you need only follow the company rules for how to inform the company of any given absence.  I recommend doing so in writing, via e-mail.  When doing so, you need not describe exactly what the precise situation is that is causing you to leave or miss work.  Just state that you or your loved one has suffered an onset of disabling conditions (my husband just completed a chemotherapy treatment, my child has had a severe anxiety attack, my chronic condition has become symptomatic, etc.), and that you must leave to care for yourself or the family member in question.  I always suggest advising both HR and your boss of the circumstances, and the expected length of your absence (the rest of the day, the rest of the day and week, etc.).

HOW MUCH OF MY ABSENCE IS COUNTED AS FMLA LEAVE TIME?

This is an incredibly complicated question, believe it or not! What to do if an employee leaves 1/2 hour early due to an FMLA situation? Do you call that 1/2 of leave or an hour of leave? Here is the key - the employer must treat the employee on leave the same as other employees who miss time for work due to non-FMLA leave situations. However, under no circumstances may an employer "dock" an employee for more than 1 hour of FMLA leave time if the employee in fact missed less than 1 hour of work.  Iin other words, you cannot charge someone who took 45 minutes FMLA leave with having taken a 1/2 day of leave even if that is how you treat employees who have to miss some period of time due to a regular, non-FMLA illness.

What to do? I believe the best approach is to have a uniform company policy that utilizes 30 minute increments. That is, whether you miss one minute or 29, 1/2 hour of FMLA leave is attributed .

In any event, many employers struggle (understandably) with how to track intermittent FMLA leave time, so best to talk with HR and get a clear understanding as to how they are going to track it, and then you do the same.

HOW DO I KEEP TRACK OF HOW MUCH INTERMITTENT FMLA LEAVE I HAVE TAKEN?

You have several choices. 

One, a good old fashioned ledger.  If you are going to do this, then you make an entry each time you leave work, excluding from your calculations things such as regular breaks or lunch hours, and ending each day at your normal quitting time.

A second option: the Department of Labor has made a free App available that will help you keep track of your leave time (it also can help you with keeping track of hours worked, overtime hours worked, etc.).

A third approach is to simply send an e-mail each time immediately before your departure to your boss; later on, it will be relatively easy to figure things out from that.  I recommend, though, that you compile a summary each week or month of how much time you have missed.

You also will want to correspond with HR from time to time to make sure that your records match theirs.  Everything should match up pretty well, provided you understand in what increments of time HR will be using to calculate your FMLA absences, and provided you properly advised the company each time that you took off for intermiitent leave (I recommend an e-mail memorializing that you are leaving).

WHAT DO I DO IF I WORK FROM HOME AT NIGHT OR ON THE WEEKENDS WHILE OUT ON INTERMITTENT FMLA LEAVE?

This is a very sticky situation.  Conscientious employees will often do work at night or on the weekends while on intermittent FMLA leave.  However, they do not deduct those work hours from their intermittent leave calculations.  Further, in doing so, they create an expectation that future work while out on leave should be expected. To cap it off, they usually do not submit these hours to the company as hours worked, and  therefore essentially work for free.

The problem with working while on FMLA leave is multifaceted, but may best be summarized as follows:  You are deemed to be out of work, so you do not get paid for work that you have completed; further, you do not get full credit at work for whatever you have done because you are "out of sight and out of mind."  Meanwhile, you are using up potentially valuable FMLA leave time even though, in fact, you really didn't take as much FMLA leave as the company's records indicate.

What to do?  Advise your boss and HR up front about what you could do while on leave, i.e. "I could still work 30 hours next week on this project, but not during normal working hours."  Then, ask HR and your boss whether the company wants you to do the work.  If so, then ask how your work will affect the number of hours attributed to your intermittent FMLA leave that week, and whether you will be paid for the hours you work (with the balance being deemed a leave day).  If they want you to do the work, and agree to pay you, then do the work.  Your FMLA leave calculation for that week should look like this:

Leave time:   10 hours
Paid Time:    30 hours

This is sometimes referred to as a reduced leave schedule, and it is very common.  It is perhaps most useful when your intermittent leave is required to care for a close family member who is ill. The key is to get a good clear understanding up front from the company as to how things are going to be handled.

If the company does not agree to pay you for hours worked while on FMLA leave, and to deduct your hours from your FMLA leave accrual, then you proceed at your own peril by working (eventually, at a minimum, you will resent working for free.  You will also resent that your boss comes to feel that you are just as available when out on medical leave as you are when you are at work).  In my view, the best approach in this scenario is to do no work while out.  After all, FMLA leave is used to provide you with job security in your time of need, or so that you may care for a loved one.  Isn't it, therefore, a good idea to put yourself first so that when you return to work your batteries are fully charged so that you can do the best job possible?

CAN I STRUCTURE A SCHEDULED INTERMITTENT FMLA LEAVE?

Yes, in some cases.  If you have medical certification that shows that taking off each Friday, or every other day, etc., is medically necessary, then you can structure FMLA in advance.  This is common for those dealing with chemotherapy or dialysis treatments, or recovering from major surgeries.  Another example is where you and other family members have a set rotation to care for a loved one.  If Thursday is the day you are scheduled to drive Mom to and from dialysis, let the company know and things should proceed accordingly.

CAN MY EMPLOYER TRANSFER ME TO ANOTHER POSITION IF I NEED INTERMITTENT FMLA LEAVE?

Yes.  However, it has to be a reasonably equivalent position in terms of stature and geographic location, and you must be paid the same wages and benefits for the new job as you were for your old.  When your intermittent leave is over, you must be reinstated to your former job (or to a reasonably equivalent position).

CAN I GET PAID WHILE ON INTERMITTENT FMLA LEAVE?

Sometimes this question is phrased, "Can my employer require me to take sick time, PTO or vacation time while I am out on FMLA leave?"  Regulation 825.207 addresses this issue.  The answer is: Yes, in general you can request to be paid your accrued sick time, etc.; by the same token, your employer may require you to take your paid sick time, PTO or vacation time while out on FMLA Leave.  The taking of such paid leave time does not extend/eliminate your FMLA leave.  That is, if you miss a week for an FMLA qualifying event, and you elect to take a week of vacation pay, then your absence is still treated as one week of FMLA leave.

One important caveat.  recently, we blogged on whether you can receive Short-Term Disability pay while out on FMLA leave (the answer is: Yes).  If you are receiving STD benefits, you cannot at the same time receive (or be required to take) paid sick time, PTO or vacation pay.  Except, you can take enough paid time form any one of these paid leave banks to make up the difference between your normal pay and what you receive in STD benefits (usually 2/3rds of your pay).

Example:  You are out for three days on FMLA leave, and you get paid 2/3rds of your normal pay via STD insurance.  You can elect (or the company may require) to take 1 day of vacation pay so that you are "made whole" for your wage loss while out on FMLA leave.

CAN I BE PUNISHED FOR TAKING FMLA LEAVE

It is illegal for employers to punish an employee because the employee has exercised his/her rights to intermittent leave.  Common forms of "punishment" include: demotion, failure to promote, transfer to another (remote) job location, transfer to a different shift, termination, write ups for excessive absenteeism, Performance Improvement Plans issued because the employee has failed (during the leave period) to complete all work, or to complete work in a timely fashion, etc.

It is also illegal for employers to create a hostile work environment designed to freeze out, ostracize or overburden an employee because the employee has taken intermittent leave, although this is a little harder to prove.  Common tactics in this regard include exclusion from meetings, moving a work station to a more isolated area, making an employee sit alone at lunch, giving an employee excessive amounts of work, etc.

One other thing I see from time to time.  Employers will sometimes call or e-mail an employee out on intermittent FMLA leave for assistance on a given project.  Naturally, providing some minimal amount of assistance with regard to such endeavors is the right thing to do.  However, if the boss is demanding that you spend your afternoon completing a project (when you planned on accompanying your Son to to an important doctor's appointment), you should advise he/she (in writing) that you are on intermittent FMLA leave and cannot do so.  If this occurs, it may be a good idea to establish some parameters for future "work while on leave" projects, as discussed above.

WHAT CAN I DO IF I AM PUNISHED FOR TAKING INTERMITTENT FAMILY AND MEDICAL LEAVE?

If the punishment causes you to lose wages (i.e. demotion, failure to promote, termination), you can file a federal lawsuit to recover damages.  Employers who are liable for such acts will be liable for the employee's attorney fees and costs (usually lawyers take these cases on a contingent fee basis, and keep track of how many hours they put into the case to support their fee petition).  In addition, for every dollar that the employee proves that they lost as a result of the employer's retaliatory actions, the employer must pay two dollars.  So, if you lose a job paying you $40,000, and are out of work for a year, the employer must pay you $80,000 for your lost wages for that year.

If the punishment is in another form that does not cause immediate wage loss, you should put the company on notice of your feelings and beliefs and request an investigation.  Punishing an employee who registers such a complaint is also illegal under FMLA.

Pennsylvania Family Leave and Disability Attorney


John A. Gallagher, Esquire
Helping Individuals Since 1991
John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues…

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11 comments:

Anonymous said...

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Me and my hell said...

Can your employer force u out for the 12 week period if u only want intermittent leave? My company is doing just that, trying to say they can't accomodate me and i can't do my job cause of my medical issues. please help

Me and my hell said...

Can i be forced to take the 12 week leave at once even tho i only want intermittent leave? They are trying to say im incapable of working due to my health tho my doctors say otherwise. all because one doctor screwed up my return to work form and then changed it. please help asap!!

Employment Lawyers said...

Me and My:

You get 12 weeks of FMLA leave, whether all at once or hour by hour. If the company is not honoring FMLA, you should seek counsel.

Regards,

John A. Gallagher

Anonymous said...

My employer set their own parameters for my intermittent leave that state "1 episode per month lasting up to 3 days" and they are not telling me that it must be 3 consecutive days and if I only need or take 1 of those 3 days then that 1 day wipes out the other 2 days. Even if I need the day on a Friday, they say that Saturday and Sunday take up the other 2 days even though I do not work on weekends. Can they do this?

Anonymous said...

Is it legal to not notify employee of the FMLA act, misleading the employee to use his/her ENTITLED sick/personal/vacation days and then creating a hostile environment to threaten the employee of termination and write-ups of absentee even with a doctor's notes during those absences, causing the employee emotional and mental distress?

Terre Dean said...

This is an informative post. You have well described the issues of medical and intermittent leave. You can keep track of your leaves plus working hours and determine the wages of your own by the revolutionary online timesheet application introduced by U.S. department of labor.

Anonymous said...

Does fmla cover an employee that works night shift (6:30pm-6:30am) and has a family member who needs transportation during the day to get to appointments/procedures etc...Can that employee claim fmla hours to go into work late due to missed sleep during the day?

Tina Schwoerer said...
This comment has been removed by the author.
WBL said...

I was working as a shipping clerk and had to use 3 days of Fla. Upon returning I was informed that I was no longer working in shipping and was told to report to inspection. No loss of pay. No loss of hours. But being demoted like this in this way makes me feel like I am a worthless contribution to this company and thinking seriously about quitting. Is there anything I can do? I mean besides quit?

WBL said...
This comment has been removed by the author.