Intermittent Leave

While FMLA leave may be taken in small increments to allow an employee to attend a doctor’s appointment or care for a sick child, employers should be aware of employees who seek to apply FMLA leave to such things as random work breaks and late arrivals.  A recent case decided by the Fifth Circuit Court of Appeals found that an employee with diabetes  who often arrived to work late and demanded lengthy  restroom breaks which disrupted the responsiveness required in his workplace, resulting in his termination, was not entitled to FMLA leave for his tardiness or restroom breaks. The court found that he would have been protected by the FMLA if he was too incapacitated to come to work at all.

Practice Pointer:  Employers should require medical certifications for all FMLA leaves.  It is also  permissible to challenge intermittent leave requests so as to minimize disruptions in the workplace.

Use of FMLA to investigate a potentially serious illness

A recent case decided that a doctor’s visit to obtain test results to determine whether a serious health condition exists can be covered by the FMLA despite the absence of a 3 consecutive day incapacity.

When can the flu qualify for FMLA leave?

The FMLA regulations provide that the common cold and flu do not meet the definition of a serious health condition and therefore do not qualify for FMLA leave unless complications arise. The key is, of course,  the definition of complication. If the flu forces an employee to be incapacitated for more than 3 days and the employee sees a doctor , that employee will likely be eligible for FMLA leave.

Employers should designate any qualifying time off as FML leave to avoid unintentional extension of job protected leave

Upon learning that an employee requires time off for an FMLA qualifying reason, employers may choose among 3 possible responses: (1) require a certification from a Health Care provider before approving the time off as FMLA qualified; (2) designate the time off as FMLA leave without requiring such certification; or (3) choose not to designate the time off as FMLA leave.

If the employer chooses not to designate the time off as FMLA leave than the employee will not exhaust any of the 12 weeks of leave available to him/her.  This may result in extended amounts of job-protected leave.

Whether or not a completed certification from a health care provider is required, it is important to be consistent in administration practices soas to avoid the appearance of discriminatory treatment among employees.