- Run FMLA time concurrently with sick leave. Although an employee may not want to use FMLA
time if he/she has sick time or other paid leave time available, it is up to the employer to
designate leave as FMLA-qualifying. This will minimize the amount of time off in any year.
Make sure that company policy requires the use of FMLA time concurrently with sick time.
- Beware of abuse of intermittent FMLA leave. The FMLA should not be used for random work
breaks or late arrival without a good excuse. Employers are well advised to require medical
certifications for all FMLA leaves and should challenge intermittent leave requests when
appropriate. A recent case involved a call center employee with diabetes who often came to
work late and demanded permission to take lengthy restroom breaks, which caused problems
with the call center’s responsiveness. The employee was fired and sued, alleging entitlement to
the breaks. The Court held that the breaks were not protected by the FMLA unless the
employee was too incapacitated to come to work at all. (Note: The ADA may require periodic
breaks as an accommodation).
- An employee may use FMLA to check out a possible serious medical condition. In a recent case
a Court held that a Doctor’s visit to get test results to deterrnine whether a serious health
condition exists can be covered by the FMLA, notwithstanding the fact that the employee had
not been previously incapacitated or sick for at least 3 consecutive calendar days.