Employers may ask that intermittent leave not unduly disrupt operations
Posted October 26, 2017
One of the top frustrations of Family and Medical Leave Act (FMLA) administrators is when employees take intermittent leave. You know, the kind where the employee calls in one day and informs you that he or she will not be in that day because of a condition for which you have a valid certification. While the employee might be entitled to the leave, in some situations, you can require that the employee work with you on scheduling the leave.
First things first: If an employee needs intermittent leave out of medical necessity, and the situation involves unforeseeable need for leave, the employee will likely have a hard time scheduling the leave in advance. For example, if an employee has a condition that flares up unexpectedly, you can't ask that the employee schedule the flare ups.
If, however, an employee needs intermittent leave for planned medical treatment, whether his or her own, or that of a family member, your options expand. The regulations indicate the following:
"An employee who is planning medical treatment must consult with his/her employer and make a reasonable effort to schedule the leave so as not to "unduly disrupt" the employer's operations."
"If … an employee neglects to consult with the employer, the employer may initiate the discussion. Similarly, when an employee needs medically necessary intermittent or reduced schedule leave, the employer and employee must attempt to work out a schedule that meets the employee's needs without "unduly disrupting" the employer's business."
In both cases, the schedule is generally subject to health care provider approval.
Generally, health care providers, not employees, control the determination of the existence of the serious health condition, the timing of medical treatments and, therefore, the leave schedule. You should not deny or delay intermittent leave unless a health care provider agreed to reschedule medical treatments for which the intermittent leave was needed.
Also, it would not be reasonable for you to request that an employee schedule planned medical treatments outside normal work hours when scheduling treatment during work hours would not otherwise unduly disrupt operations.
The employee generally needs to demonstrate that the medical treatment can best be accommodated through intermittent leave (usually through a certification), and is required to work with you to come up with a schedule that does not unduly disrupt your operations.
Some courts have reviewed such scheduling of leave for medical treatment, and have indicated that if an employee does not act in good faith in such consultation with you, the employee's actions may be seen as unduly disrupting your operations. If, however, circumstances beyond the employee's control affect the scheduling of the medical treatment, you could not argue that the scheduling would unduly disrupt your operations.
Like so many issues regarding the FMLA, scheduling intermittent leave will depend upon the specific facts involved.
This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.
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