VIII. Intermittent Leave

1
VIII. Intermittent Leave

• Intermittent leave is leave taken in separate
  blocks of time due to a single illness or injury.
  Examples include leave taken on an occasional
  basis for doctors appointments, or leave taken
  several days at a time spread over a 6 month
  period (such as for chemotherapy). 29 CFR
  825.203(c)(1).

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VIII. Intermittent Leave

• Leave taken to care for a child, spouse or parent
  with a serious health condition, or for an
  employees own serious health condition, can be
  taken either intermittently or on a reduced leave
  schedule. A reduced leave schedule is a
  change in the employees schedule over a period
  of time, usually from full-time to part-time.

3
VIII. Intermittent Leave

• Medical FMLA leave taken on an intermittent or
  reduced schedule may be taken only when
  medically necessary. If periodic leave is
  required, the treatment regimen described in the
  medical certification must also certify the
  medical necessity of intermittent leave or leave
  on a reduced schedule. 29 CFR 825.117.

4
VIII. Intermittent Leave

• An employee may take recurring leave for the
  birth or adoption of a son or daughter (or foster
  care placement) only if the employee and the
  employer agree to such an arrangement.

5
VIII. Intermittent Leave

• An employee may request intermittent leave for
  foreseeable planned medical treatments. In such
  a situation, the employer may transfer the
  employee temporarily to an alternative position
  for which he is qualified with no reduction in
  pay or benefits, if the new position would better
  accommodate recurring periods of leave than the
  employees regular position. 29 CFR 825.204(a).

6
VIII. Intermittent Leave

• An employee seeking intermittent or reduced
  schedule leave must meet FMLA eligibility
  criteria before the leave is to begin. However,
  once the employees leave has been approved, he
  is not required to reestablish eligibility each
  time more leave is needed.
• Intermittent leave or reduced schedule leave will
  reduce the total amount of FMLA leave only by the
  amount of time actually taken off.
• Periodic leave may be taken in increments of any
  size, although the employer may limit leave
  increments to the shortest period of time that
  the employers payroll system uses to account for
  absences of the use of leave.

7
VIII. Paid Unpaid Leave

• FMLA leave is generally unpaid. However, FMLA
  regulations permit the substitution of paid leave
  for unpaid FMLA leave in certain circumstances.

8
VIII. Paid Unpaid Leave

• Paid vacation and personal leave. An employer
  must allow and may require an employee to
  substitute accrued paid vacation and/or personal
  leave time for any type of FMLA leave.

9
VIII. Paid Unpaid Leave

• Paid medical/sick leave. An employees paid
  medical/sick leave may be substituted for unpaid
  leave if the particular circumstances for which
  the employee seeks leave meet the employers
  usual requirements for the use of sick/medical
  leave. (For example, an employee is entitled to
  substitute paid medical/sick leave to care for a
  seriously ill family member only if the
  employers plan permits paid leave to be used for
  that purpose). (825.207(c)).

10
VIII. Paid Unpaid Leave

• Paid leave will run concurrently with FMLA leave
  if properly designated by the employer.
• If an employer requires the employee to take paid
  leave (substitute) as part of FMLA leave, it must
  notify the employee within two business days of
  the date the employee provides notice of the need
  for such leave. (825.208(c)). If the employer or
  the employee does not substitute paid leave for
  the unpaid FMLA leave, the employee will remain
  eligible for the accrued paid leave.

11
VIII. 12 Month Leave Period

• Department of Labor regulations permit the
  employer to chose one of four methods for
  determining the 12-month period within which an
  employee is entitled to 12 weeks of leave. (29
  CFR 825.200(b)).
• The method chosen must represent a single uniform
  policy covering the employers entire workforce
  and the employer must inform its employees of the
  applicable method. If the employer fails to
  designate a method, then the employees are
  allowed to calculate their leave entitlement
  under whichever method is most beneficial to them.

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VIII. 12 Month Leave Period

• The four methods for determining the 12-month
  period are
• The calendar year.
• Any fixed 12-month leave year, such as a fiscal
  year or a year starting on the employees
  anniversary date.
• A 12-month period measured forward from the date
  an employees first FMLA leave begins.
• A rolling 12-month period measured backward from
  the date the employee uses any FMLA leave.

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VIII. 12 Month Leave Period

• For purposes of determining the amount of leave
  use by an employee, the fact that a holiday may
  occur within the week taken as FMLA leave has no
  effect the week is counted as FMLA leave.
• However, if for some reason the employers
  business activity has temporarily ceased and
  employees are generally not expected to report
  for work for one or more weeks (e.g., Christmas
  break), the days the employers activities have
  ceased do not count against the employees FMLA
  leave entitlement. (29 CFR 825.200)

14
VIII. Designation of Leave

• DOL Regulation 29 CFR 825.208(a) requires the
  employer to designate leave (paid or unpaid) as
  FMLA leave and to give written notice of the
  designation to the employee.

Hey Boss Im going to need paid leave because of
a serious medical condition, Im allergic to
work.
15
VIII. Designation of Leave

• Regardless of whether the employee requests that
  an absence be counted as FMLA leave, (or even if
  he requests that it not be treated as FMLA leave)
  the employer may designate a qualified absence as
  FMLA leave.

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VIII. Designation of Leave

• The employers designation of leave may be made
  only on the basis of information provided by the
  employee.
• However, if the leave is requested for a serious
  health condition, the employee may be required
  to provide a health care providers
  certification.

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VIII. Designation of Leave

• Once the employer has acquired knowledge that the
  leave is being qualified as paid and taken for a
  FMLA qualifying purpose, the employer must
  promptly (within two business days absent
  extenuating circumstances) notify the employee
  that paid leave is designated and will be counted
  as FMLA leave.

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VIII. Designation of Leave

• If the employer has notice that the employees
  leave qualifies as FMLA leave and does not
  designate the leave as such, it may not designate
  the leave retroactively unless
• The employee has been out of work and the
  employer does not learn of the reason for the
  leave until after the employee returns (in which
  case the employer must designate the leave upon
  the employees return) or
• The employer has provisionally designated leave
  as FMLA leave and is awaiting receipt of medical
  certification or other reasonable documentation
  of the need for leave.

19
VIII. Designation of Leave

• However, the Supreme Court has struck down
  elements of the notification component of the
  regulations
• In Ragsdale v. Wolverine World Wide Inc., 122 S.
  Ct. 1155 (2002), the Supreme Court struck down 29
  C.F.R. 825.700(a), which states that if an
  employee takes paid or unpaid leave and the
  employer does not designate the leave as FMLA
  leave, the leave does not count toward an
  employees FMLA entitlement.
• While not ruling out the possibility that
  additional leave might be required if an employee
  could establish that he suffered harm because of
  the employers deficient notice, the Court
  concluded that uniform application of this
  penalty was an impermissible alteration of the
  framework enacted by Congress.
• Even in the aftermath of Ragsdale, employers are
  well advised to comply with the designation
  requirements of the FMLA regulations.

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IX. Administrative Requirements
21
IX. Record Keeping

• An employer subject to the FMLA must keep the
  following records for no less than three years
  and make them available to Department of Labor
  (DOL) representatives upon request
• Basic payroll and identifying data
• Dates FMLA leave is taken by employees
• If FMLA leave is taken in increments of less than
  a full day, the hours of the leave
• Copies of employee notices of leave furnished to
  the employer and copies of all general and
  specific notices given to employees as required
  under the FMLA and its regulations
• Any documents describing employee benefits or
  employer policies and practices regarding the
  taking of paid and unpaid leave
• Premium payments of employee benefits
• Records of any dispute between the employee and
  the employer regarding the designation of leave
  as FMLA leave

22
IX. Record Keeping

• Records and documents relating to medical
  certifications, re-certifications or medical
  histories of employees and employees families
  must be kept in separate files and treated as
  confidential medical records. Access to these
  records must be limited to those with
  authorization.

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IX. Record Keeping

• It is critically important that employers be able
  to document that they have provided adequate
  notice of FMLA rights and complied with FMLA
  procedures. By providing proper notices and
  being able to document compliance with FMLA
  procedures, the employer will have the legal
  authority to deny leave when an employee fails to
  comply with employee notice requirements or to
  defend against other adverse action.

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IX. Employee Notice

• In situations where the need for FMLA leave is
  foreseeable, the FMLA requires an employee to
  provide at least 30 days notice to the employer
• If the employee fails to give 30 days notice of
  foreseeable leave, the employer may delay the
  start of the FMLA leave until at least 30 days
  after the notice was given
• If the leave is required because of a medical
  emergency of other such unforeseeable event, an
  employee must provide the employer only with as
  much notice as is practicable under the facts
  and circumstances of the case.

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IX. Employee Notice

• The employee must provide at least verbal notice
  sufficient to make the employer aware that the
  employee needs FMLA qualifying leave, and the
  anticipated timing and duration of the leave.
  However, the employee does not have to expressly
  assert FMLA rights or even mention the FMLA.
• Notice is sufficient if it provides the employer
  with enough information to put it on notice that
  FMLA leave is needed. Ozolins v.
  Northwood-Kensett Community School District, 40
  F. Supp. 2d 1055 (N.D. Iowa 1999). The employer
  should inquire further of the employee if it is
  necessary to have more information about whether
  the employee is seeking FMLA leave.

26
IX. Employee Notice

• With respect to planned medical treatment, the
  employee should consult with the employer to
  plan leave so as not to disrupt unduly the
  employers operations. The employer may request
  that the employee reschedule the leave, if
  possible.

27
IX. Employee Notice

• The employer may require an employee to report
  periodically on the employees status and intent
  to return to work. If an employee gives an
  unequivocal notice of intent not to return to
  work, the employers FMLA obligations cease.

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IX. Employers Posting Notice

• A notice explaining the Acts provisions must be
  conspicuously posted on the employers premises

29
IX. Employers Posting Notice

• The employer must provide written guidance. This
  guidance must be contained in an employee
  handbook, or if no handbook or similar document
  exists, it must be given to the employee at the
  time leave is requested.

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IX. Employers Posting Notice

• The employer must provide written notice to the
  employee at the time the leave is requested.
  When an employee gives notice of the need for
  FMLA leave, Department of Labor regulations
  require the employer to provide the employee with
  written notice describing the employees rights
  and obligations and explaining the consequences
  of the employees failure to meet them. This
  written notice must be provided within a
  reasonable time of the request, usually within
  one or two days. (29 CFR 825.301). The notice
  must contain the following information

31
IX. Employers Posting Notice

• The notice must contain the following
  information
• Whether the leave will be counted against the
  employees annual FMLA leave entitlement.
• Any requirement that the employee provide medical
  certification of a serious health condition and
  the consequences of failing to do so.
• The employees right to substitute paid leave and
  whether the employer will require the
  substitution of the paid leave as well as the
  conditions related to any substitution.
• Any requirement that the employee make premium
  payments to maintain health benefits and the
  arrangements for doing so along with the possible
  consequences of failing to make timely payments.
• Whether fitness for duty certification will be
  required at the end of the leave
• The employees right to reinstatement to the same
  or equivalent job.
• The employees status as a key employee and the
  potential that as such he may be denied
  reinstatement
• The employees potential liability for payment of
  health insurance premiums if the employee fails
  to return to work.
• Whether the employer will require periodic
  reports of the employees status and intent to
  return to work.

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IX. Medical Certifications

• An employer may require medical certification
  issued by a health care provider of the family
  members serious health condition or of the
  employees own serious health condition. The
  employer must allow the employee at least 15 days
  to obtain the medical certification.

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IX. Medical Certifications

• The medical certification may relate only to the
  serious health condition for which the current
  need for leave exists. It is important that the
  medical inquiry be strictly limited in this
  fashion so that they are job related and
  consistent with business necessity under the
  Americans With Disabilities Act. The Department
  of Labor has developed an optional form (WH-380)
  to use in obtaining medical certifications.