28 NOVEMBER / DECEMBER 2020 HUMAN RESOURCES Managing Intermittent FMLA Leave Debra A. Mastrian Partner SmithAmundsen LLC dmastrian@salawus.com SmithAmundsen LLC is a Diamond Associate Member of the Indiana Bankers Association. The Family Medical Leave Act provides 12 weeks of unpaid, job-protected leave to eligible employees1 for certain family care and medical reasons, and up to 26 weeks for certain military caregiver purposes. Under some circumstances an employee may take FMLA leave on an intermittent or reducedschedule basis.2 Intermittent leave may be required when an employee needs to miss work periodically, such as for recurring medical appointments, or when a condition suddenly becomes incapacitating (e.g., asthma attack, migraine headache). The FMLA has been around since 1993, and employers are familiar with its application. Managing employees’ use of unexpected intermittent leave, however, continues to be a difficult issue for employers. Absences can be disruptive to an employer’s operations (losses in productivity, less responsive customer service or increased customer dissatisfaction, delayed projects, increased burden on management) and can negatively affect co-workers’ morale. Scheduling. Employers have some rights when it comes to scheduling intermittent leave. Employees must make a “reasonable effort” to schedule planned medical treatments so that the treatments do not unduly disrupt an employer’s operations. Employees must consult with their employers about a schedule for planned treatments; if they do not, employers may require the employee to discuss alternative arrangements with their healthcare provider. This requirement may be as easy as asking the employee to try to schedule appointments on certain days of the week or times of the day. Transfer. In some circumstances an employer may temporarily transfer employees on intermittent or a reduced-schedule leave to an alternative job for which the employee is qualified and which better accommodates the leave. The Department of Labor has stated that a temporary transfer is allowed only when the intermittent leave is foreseeable, such as planned medical treatments, as opposed to unpredictable. Many commentators, however, and at least one Indiana court disagree. In Ballard v. United States Steel Corp., the federal district court found that a temporary transfer was permissible when the employee’s unpredictable intermittent leave unreasonably disrupted business operations. Pay and benefits must be equivalent, and the transfer must not create an undue hardship on the employee. The position need not have equivalent duties, but transfer may not be used as a way to “discourage” employees from using FMLA leave. Consequently, there are some limitations. For example an employer cannot assign a whitecollar employee to a menial job, or require an employee to move a significant distance from the employee’s current office or otherwise impose an undue hardship on the employee. Once the leave ends, the employee must be returned to the prior position. If transfer is the best option, the employer must be careful to ensure the employee does not view it as discipline or as discouraging future leave. Absences exceed certification. If an employee’s absences become more frequent or exceed the time provided in the employee’s FMLA certification, as with any significant change in circumstances, an employer can ask for recertification. The request should be in writing, and an employee has 15 days from receipt of the request to provide the updated certification. If the employee does not provide the updated certification, the leave may be denied. In such cases, the employer should send a letter to the employee documenting the failure to return the requested recertification, and that additional absences will not be counted as FMLA unless and until the required documentation is provided. In the meantime if the employee has additional absences, those absences would
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