Employers who originally envisioned or understood that FMLA would be taken once, in its entirety when an employee had a child or provided caregiver services for a family member have found it difficult to adjust to the provision of intermittent leave and reduced schedules for the impact they have had on the workplace. When dealing with intermittent leave employers are experiencing some new dynamics with employees including keeping detailed and precise records on how much time has been counted toward FMLA as well as eligibility for FMLA.
Employers wonder what accommodations to provide the employee, how to cover for an employee who may be spontaneously or sporadically absent from work and have even found themselves evaluating if they have a right to terminate an employee on intermittent leave. When employees use FMLA intermittent leave for their own medical ailments it sometimes creates suspicious employers who feel they have employees abusing the right to time off under FMLA and has caused some employers to resort to surveillance upon their employees on leave.
Intermittent leave can be a complicated part of FMLA for an employer. The Family Medical Leave Act (FMLA) was signed in to law in 1993 under President Bill Clinton due to an increasingly diverse worker demographic, most notably women of child bearing age, mothers concerned with raising their young children, and the aging baby-boomer generation who were becoming more concerned with caring for themselves, their families and their parents.
FMLA provides an entitlement of up to 12 weeks of job-protected, unpaid leave during any 12-month period to eligible, covered employees for the following reasons: 1) birth and care of the eligible employee’s child, or placement for adoption or foster care of a child with the employee; 2) care of an immediate family member (spouse, child, parent) who has a serious health condition; or 3) care of the employee’s own serious health condition. It also requires that employee’s group health benefits be maintained during the leave. The FMLA is administered by the Employment Standards Administration’s Wage and Hour Division within the U.
S. Department of Labor. This twelve week leave period has caused confusion and uncertainty for the employer, in part, because it can be taken in a single block of time or with a reduced schedule or intermittently. Employees taking FMLA leave in small single blocks of time can count these smaller leave periods toward the twelve week total. An employee who would require a single block of time to take care of a needy parent or child would potentially be able to provide an employer details about the length of time needed and when they would need to schedule that time off.
To illustrate, an employee’s parent who needed to undergo surgery would know the surgery date and would most likely have a predictable recovery time where the employer was needed to provide care. A health care provider would also have estimated recovery time before the employee’s parent could take care of themselves for certain types of medical procedures. FMLA time off in single blocks of time can still be predictable and clearly defined, lessoning the impact on an employer who will need to cover for that employee’s absence and tally the amount of time taken toward FMLA.
Changing the work schedule may be necessary if an employee needed to drive a child or parent to receive regular medical treatment such as dialysis. This could result in a reduced schedule situation where the employee took off one day a week to provide for their family member. Reduced schedules typically cause problems when an employee is moved from full time to part time and their benefit package changes or disappears. Employees can also take intermittent leave in order to fulfill any childbirth, adoption, caregiver or personal health issues and concerns.
Intermittent leave is taken in individual periods of time but each time period uses the same qualifying reason. Many circumstances could cause the need for intermittent leave; if a parent needs to continue follow up visits to a physician and needs to rely on the employee to get them to and from the visits, if a patient experiences side effects from certain treatment which prevent them from being able to care for themselves temporarily, and many patients have flare ups from chronic conditions which are unpredictable and spontaneous which would cause the need for care from an employee.
All of these conditions could surprisingly cause an employee to miss work. There is little restriction on the amount of time required to take the leave, many times depending upon how the employer calculates employees pay. For example if the employer breaks down the employee pay scale into 15 minute increments, an employee may be able to use as little as 15 minutes toward FMLA leave. So long as the intermittent leave or leave on a reduced-schedule basis does not exceed twelve total weeks in a twelve-month period, the statute imposes no limit on the number of times an employee can take these types of leave.
For example, an employee who can establish a qualifying need for leave could conceivably request one day of leave every week of the year, or one hour a day for every workday to provide care to a parent and still be within the limits of the statute. An employer does have a right to be notified and understand more about a serious health condition. The FMLA allows an employer to demand certification of the serious health condition. A certification from the health care provider will be sufficient if it states: 1) “the date on which the serious health condition began”; (2) “the probable duration of the condition”; (3) the medical facts relating to the condition; (4) a statement that the requesting employee is needed to care for the parent and the length of time that this will likely require; and (5) if the employee seeks intermittent leave or leave on a reduced schedule due to medical treatments, the dates for the treatment and its duration along with a statement that the employee’s intermittent leave or leave on a reduced schedule is necessary for the care of the parent.
It is also to include the expected duration and schedule of the employee’s intermittent or reduced schedule leave. Naturally, when an employer has concerns about the undue hardship created by an employee on intermittent leave, they question if they have the right to terminate the employee. And there are cases where the courts have sided with the employee over undue hardship. One such case is Spangler v. Federal Home Loan Bank of Des Moines. Spangler’s employer was aware that, for years, she suffered from depression.
In a five-year period, Spangler missed over 110 days of work for medical or family reasons, she was counseled on the need to reduce her absences and also ordered to speak with someone rather than leave voicemail messages – her typical practice – when she called to advise her employer that she would miss work. She was placed on six month probation when she missed several consecutive days and left voice mail each day, quickly after her counsel. Spangler experienced another separate probation, after her first probation, for even more unscheduled absences.
Her employer had to assign other employees, who had their own responsibilities, to cover for Spangler. They had also received feedback from a customer Spangler was responsible for that her absences were negatively affecting the customer’s business. Shortly thereafter, she missed three consecutive days of work. The first day she called to advise the employer that her absence was due to transportation problems, while the second day was due to “depression again. ” On the third day, she did not call or appear for work and was terminated. Spangler challenged the termination under the ADA and the FMLA.
Although the lower court found that Spangler created a material issue of fact regarding whether she had a “serious health condition,” it concluded that there was no dispute that on the day she was terminated, she had not given notice to her employer of the need for leave under the FMLA. In the appellate opinion, the court stated in dicta that “the FMLA does not provide an employee suffering from depression with a right to “unscheduled and unpredictable, but cumulatively substantial absences’ or a right to “take unscheduled leave at a moment’s notice for the rest of her career. Another case involving an employee’s own medical condition was a complicated issue of trying to determine how to calculate what days qualified for intermittent leave. In Davis v. Michigan Bell telephone Co. , the need to keep detailed and precise records was coupled with defining how a company can calculate eligibility for intermittent leave. There was a conflict between the employee who carried over consecutive intermittent leave time from one year to another, and the employee who calculates eligibility for intermittent leave on a calendar year basis.
Since FMLA time off is also dependent upon working 1250 hours during the 12 months immediately prior to the request, the employer wanted to recalculate from the first of the new calendar year. No one disputed that Davis qualified for intermittent leave but was she eligible in a new year when the company policy was to recalculate eligibility from the first unexcused absence of any new calendar year. In the case of Davis, the first absence was January 3rd and she had not worked 1250 hours in the previous 12 months and therefore did not qualify for intermittent leave.
Candice Davis disagreed, did not show up for work after being notified she would be considered resigned if she did not. Davis filed a lawsuit claiming that the company had interfered with her FMLA rights and had retaliated against her for exercising them. She claimed that her absences in January were simply part of her intermittent leave that began in December, and which had been previously approved. The company argued that FMLA eligibility for intermittent leave cannot be “carried over” from one 12-month period to the next.
The district court agreed, and concluded that the company could not have interfered with Davis’ FMLA rights, because Davis had not worked enough hours in the preceding 12 months (calculated back from her January 3 absence) to be eligible for FMLA benefits. The court further found that Davis’ ineligibility precluded her retaliation claim, as well. The lower court’s decision was upheld on appeal. There is little question that employees have found ways to abuse intermittent leave policies under FMLA.
The broad scope of what qualifies as a “serious health condition” leaves many areas for an employee to be approved for time off whenever necessary to cope with or relieve symptoms of the serious health condition. Whether this condition is migraine headaches, asthma or depression, as we have seen, the employee is allowed to provide little notice of time off to an employer and choose when leave is required. There are some surprising numbers documented about how many employees have medical certifications on file for chronic serious health conditions.
For example, the National Association of Manufacturers’ survey reported that twenty-five percent of workers eligible for FMLA leave had such certifications, and many airline companies reported that fifty percent or more of their flight attendants had medical certification for FMLA leave. Similarly, a U. S. Chamber of Commerce survey reported that large companies have a fifteen percent certification rate. Verizon reported rates as high as forty-four percent in some of its divisions, and the City of New York reported a thirty-two percent rate for 911-calltakers.
High amounts of workers in one place eligible for intermittent leave can be overwhelming for an employer who has to spend additional money for human resource recordkeeping and is consistently burdened by finding replacements to cover for employees who have taken leave. And since we are dealing with people, on both sides of the issue, suspicion and abuse arise. Suspicion from an employer may arise from a medical condition which does not have any outward sign of occurring causes some employers to question legitimacy which can only be confirmed by navigating through the cumbersome systems of health care providers.
And abuse by an employee may arise from the fact that employees are not required to get medical certification for each absence due to an episodic medical condition. Instead, the FMLA enables employers to demand medical certification confirming episodic conditions, but leaves it to employees to determine when time off to care for that condition is needed. Employers’ suspicion has caused them to take action by placing some employees under surveillance if the employer does not believe the employee is legitimately asking for time off to recover from a serious health condition.
It has been used not only to catch people making false claims but as a deterrent for others who may consider similar action. Court cases involving surveillance arise because it is such a touchy subject and employees have ruled that it is retaliation for taking leave. In Vail v. Raybestos, Diana Vail was on FMLA leave due to chronic migraines and was suspected of lying by her employer, Raybestos. Raybestos placed Vail under surveillance while on leave by hiring an off duty police officer and she was discovered mowing lawns for her husband’s landscaping business.
The Seventh Circuit upheld the employer’s right to spy on an employee who is suspected of abusing FMLA-granted leave. The court held that the employer’s surveillance tactics were legal because they were used to supply the employer with an honest suspicion that the employee was using her leave in order to work another job. This ruling has a huge impact on employees willing to take advantage of the FMLA as a way to get off from work with no consequence. If employers are allowed to use surveillance in order to supply their honest belief of improper FMLA use, employees will be much less likely to abuse the statute.
Other rulings have also supported the Vail case and have shown a trend to allow employers to use surveillance to prevent abuse of the FMLA provisions as well as provide shelter from retaliation claims. In Williams v. Lyondell-Citgo Ref. Co. the courts held that using surveillance while on FMLA leave was not retaliation toward Williams having past FMLA leave. Lyondell-Citgo retained an investigator for the surveillance. Citgo relied on an honest belief defense and argued that the reason it denied Williams’ sick pay was not because he took FMLA leave, but because Williams was not legitimately ill.
The court agreed with Citgo’s argument and ruled that the surveillance of Williams was not retaliation; in fact it actually served as evidence supporting Citgo’s honest belief defense. The court reasoned that the retention of the investigator supported the fact that Citgo honestly believed Williams was lying to the corporation. Employers do not always have to use an investigator or hire an off duty police officer to ensure surveillance and make claims against and employee. In one case fellow employees provided the information of activities performed by an employee who was using FMLA leave time.
In Jennings v. Mid-American Energy Co. , Jennings was spotted several times shopping while on leave. She had other instances of leaving work early because of a nagging hand injury and calling in sick for consecutive days afterward, only to be seen out and about by co-workers. These accounts led to a meeting with her employer where she was given the opportunity to resign or be terminated for alleged misuse of FMLA leave. The employer moved for summary judgment in regards to the retaliation claim, and the motion was granted.
The court reasoned that an employee’s dishonesty and misuse of leave time are valid and nondiscriminatory reasons for terminating an employee. Intermittent leave, since its inception with the FMLA in 1993, remains a difficult issue between employer and employee. As recently as 2009 additional adjustments have been implemented within FMLA laws, and with the exception of employees no longer being able to request FMLA leave up to two days after they were absent, no significant changes were made to intermittent leave. Intermittent leave “was the elephant in the room, and it’s still standing there,” said Marc L.
Fleischauer, an attorney with Porter Wright Morris & Arthur L. L. P. in Columbus, Ohio. Observers say that some employees have been taking as little as a few minutes of FMLA leave at a time. Employers had been hoping the new regulations would require workers to take at least a half day off in FMLA leave at any one time, if not entire days. David S. Mohl, a senior employment attorney with Willis HRH National Employee Benefits Practice in Atlanta, said intermittent leave is “the one big frustration” employers have with the FMLA. It “can be tough to track and tough to enforce,” he said.