The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to:

Twelve workweeks of leave in a 12-month period for:
- the birth of a child and to care for the newborn child within one year of birth;
- the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
- to care for the employee’s spouse, child, or parent who has a serious health condition;
- a serious health condition that makes the employee unable to perform the essential functions of his or her job;
- any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or
Twenty-six workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

Not Forming an FMLA Policy. FMLA allows employers to decide specific guidelines around. Attendees of a recent FMLA webcast indicated that the toughest part of administering FMLA leave is the tracking, and it’s safe to assume the intermittent leave poses the greatest grief. From Excel spreadsheets to sophisticated trackers, FMLA administrators use a variety of tools to help with this task.

On July 16, 2020, Wage and Hour Division announced a Request for Information (RFI) to be published in the Federal Register seeking the public’s feedback on the administration and use of the law. Learn more about the RFI on FMLA.

FMLA
General Guidance Guidance materials about the FMLA, including guides for both employers and employees, an employee guide to military leave, Qs & As, mini cards, and more.
Fact Sheets Learn more by reading fact sheets that cover a variety of FMLA topics.
E-tools Access interactive online tools and presentations about the FMLA.
Posters Access the FMLA Poster in both English and Spanish.
Forms Access FMLA forms.
Interpretive Guidance Review Administrator Interpretations, Opinion and Ruling Letters as well as pertinent chapters of the WHD Field Operations Handbook.
Applicable Laws and Regulations Review the laws and regulations that govern overtime in the United States.

Intermittent Family Medical Leave Rules

I’ll wait patiently while you grab your pearls for clutching.

We know that the Family and Medical Leave Act permits eligible employees to take up to 12 weeks of covered leave in a 12-month period. That leave can be taken in a continuous block. Or, it can be taken in your favorite form: intermittent.

Intermittent leave involves taking leave in separate blocks of time for a single qualifying reason. (Technically, employees can also use FMLA on a reduced leave schedule by reducing the employee’s usual weekly or daily work schedule.)

Over the weekend, I read this federal court opinion about an employee who applied for and took intermittent FMLA for a few years. But, in 2016, HR put the kibosh on that.

Instead, HR placed the employee (and soon-to-be plaintiff) on continuous FMLA leave, stating that he could not work with the restrictions listed on his physician-provided FMLA certification form. So, the company told the plaintiff that he could return to work if his physician lifted the restrictions listed on his FMLA form. However, the plaintiff’s doctor refused and did not clarify whether the restrictions applied only during flare-ups.

Yadda yadda yadda, we have an FMLA lawsuit.

Now, you may be thinking to yourself, how did the company retaliate?” Well, it didn’t. This is an FMLA “interference” lawsuit. The FMLA prohibits an employer from interfering with, restraining, or denying an eligible employee the exercise of any right to leave under the Act. And, to succeed on a claim of interference, the employee doesn’t need to prove animus or discrimination or anything like that. Instead, the employee must show that his employer denied him an entitled benefit under the FMLA.

Well then, is forcing an employee to take continuous leave (rather than intermittent leave) considered FMLA interference? Let’s hear it from the Court:

By placing [the plaintiff] on continuous FMLA leave, [the employer] necessarily denied [his] concurrent request for intermittent leave. The nature of continuous leave pretermits an employee’s ability to take intermittent leave. [The employer’s] decision to place [the plaintiff] on continuous leave meant that he could not use the intermittent leave he requested.

The FMLA entitles eligible employees to both “intermittent” leave and, when medically necessary, “continuous” leave. Once [the plaintiff] notified [the employer] that his medical condition required a flexible work schedule via intermittent leave, the FMLA obliged [the employer to grant [his] request….[The employer’s] failure to provide [the plaintiff] that intermittent leave violated the FMLA.

Now, the employer here does have an out. That is, an employer does not interfere with FMLA rights “if it correctly determines that [an employee’s] limitations required continuous leave.” But, since it’s not clear here whether the defendant was right or wrong, that’s going to be a jury question.

So, what should an employer do if it questions any employee’s medical certification? Well, I’ll leave the DOL fact sheet right here. And, before I go, do yourself a favor and head over to Jeff Nowak’s FMLA Insights for “Fighting FMLA Abuse in the Summertime: Top 10 Employer Tools to Keep Employees Honest.”

You’re welcome.

Originally published on Employer Handbook blog.

Written by

How Does Fmla Works

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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General Guidance

Fact Sheets

E-tools

Posters

Forms

Interpretive Guidance

Applicable Laws and Regulations

Intermittent Family Medical Leave Rules

How Does Fmla Works

Occasional Fmla