Employers who have dealt with intermittent leave under the Family and Medical Leave Act (FMLA) know that it can be unpredictable and difficult to manage. Getting certification of the need for intermittent FMLA leave is the first step that employers can take to exert a modicum of control over the situation.
An employee’s medical certification defines the parameters of his or her need for intermittent FMLA leave. The DOL’s certification form for an employee’s serious health condition includes important questions that relate to how much intermittent leave is necessary. For example, if an employee’s condition results in episodic flare-ups, the certification form asks the doctor to estimate the “frequency of flare-ups and the duration of related incapacity that the patient may have over the next 6 months (e.g., 1 episode every 3 months lasting 1-2 days).” Alternatively, if the employee’s medical condition requires follow-up appointments or a reduced work schedule, the certification form asks the doctor to estimate the treatment schedule or reduced work schedule that the employee will need.
If an employee returns a medical certification form that does not include an estimate of the intermittent leave that will be required, an employer can advise the employee that the certification is not complete and request that he or she cure the deficiencies. See 29 C.F.R. § 825.305(c). In addition, if an employee’s use of intermittent leave varies from the parameters established by the certification, the employer can request recertification. See 29 C.F.R. § 825.308(c)(2).
The decision by the 6th Circuit Court of Appeals in Smith v. City of Niles is a good example of how a certification can help an employer plan for and control intermittent FMLA leave. See No. 11-2394 (6th Cir., Nov. 19, 2012). In that case, the employee was certified to take one day of intermittent leave every three months. The employer requested recertification after the employee took six days of leave during a six-month period. The court held that the employer was justified in requesting recertification based on the changed circumstances and that the request for recertification did not violate the FMLA.
Takeaway: Whenever an employee requests intermittent FMLA leave, an employer’s first response should be to request certification. The certification will establish parameters on the intermittent leave and enable the employer to request recertification in the result of changed circumstances.