We have recently received inquiries from employers about the nature of the information they can request concerning the need for intermittent leave under the Family and Medical Leave Act. The FMLA allows an employee to take intermittent leave in blocks of time or a reduced schedule for a single injury or illness. Intermittent leave can be a headache for employers to manage, and the rules are complicated.
If an employee’s condition is expected to last 30 days or less, an employer may request a medical recertification no more often than every 30 days. For conditions that the medical provider certifies as lasting more than 30 days, the employer must wait either until the specified period has passed or every 6 months. There are exceptions to those rules, however. For example, an employer may request recertification sooner if the circumstances described in the previous certification have changed significantly, or if the employer receives information that casts doubt on the employee’s stated reason for the need for absences.
Certain actions by the employee may cast doubt on the validity of the leave request, such as:
- FMLA leave being taken frequently on Mondays or Fridays;
- After a vacation request is denied, the employee takes FMLA leave instead; or
- Complaints by co-workers that the employee is abusing leave.
If the leave is being taken on consecutive Fridays, for example, the employer may inform the medical provider about that pattern in the recertification request and ask if that pattern is consistent with the need for intermittent leave. Surveillance of the employee might also be an option for the employer to flush out leave abuse.
An employer may also seek clarification from the employee’s same medical provider of the FMLA certification that was provided. In addition, the employer may require the employee to get a second opinion at the employer’s expense. Note that an employer can designate the provider to give the second opinion, but it may not be someone the employer regularly uses such as Health Works.
If an employee has been out of work on FMLA leave, the employer may also require a fitness for duty exam prior to returning to work. The exam, however, must be done by the employee’s own health care provider. The employer can follow up with that provider for clarification of the fitness for duty report if needed.
John Falcone and Luke Malloy handle employment law matters at PLDR Law. Feel free to contact us if you have questions about this matter.