Intermittent leave has rapidly become the No. 1 headache for HR/Benefits pros everywhere. But adding these measures to your FMLA policy will certainly ease the pain. 

You can’t forbid people from taking a few hours off here and there for legitimate FMLA reasons, but you can legally discourage abuse.

An effective policy would include at least 11 procedures, according to Attorney George Yund of the Frost Brown Todd law firm who spoke at the 2012 Labor & Employment-law Advanced Practices (LEAP) symposium in Las Vegas.

  1. Ask for notice: Always insist employees provide the required notice once they learn of the need for leave. Then make sure your supervisors designate it as FMLA leave and let employees know when they start burning their FMLA allotment. You can require 30 days of advance notice for “foreseeable” leave, or as much notice as “practicable.”
  2. Stop pay: FMLA leave is always unpaid. Even for exempt employees, you can make deductions from their wages for a few hours of intermittent leave without automatically converting them to overtime-eligible non-exempt employees.
  3. Ensure eligibility: Make sure employees requesting such leave are eligible to take it. They must work at a location within 75 miles of a worksite with at least 50 employees. Plus, they must have been employed at your company for a minimum of a year and worked at least 1,250 hours in the last 12 months. If not, they’re not eligible and requests can be denied.
  4. Deny parental leave: Even though intermittent leave is FMLA leave, you can deny it for parental care. No intermittent leave is available for childbirth or adoption purposes.
  5. Require medical certification: Leave must be medically necessary. You can insist on medical certifications and ask about specific reasons for leave, its duration and dates of treatment — both from the healthcare provider and the employee. Attach a job description to the medical certification form. And you can request second and third opinions if you have doubts — a tactic underused by employers that can send an effective message to others.
  6. Consider transfers: You can transfer employees to other positions if intermittent leave is too disruptive to their normal work.
  7. Count overtime: You can count overtime missed in calculating the total 12-week allotment.
  8. Count it all: You can count increments used for other leave in totaling leave used, using increments of up to one hour. You can use longer increments if the employee can’t join the job in the middle of a shift (e.g., flight attendants).
  9. Offer paid leave: Employees can use accrued paid time off while on leave, but you must offer the option of unpaid intermittent leave.
  10. Make them use paid time first: You can compel the use of paid leave first, so employees have to burn vacation before any unpaid FMLA leave.
  11. Count holidays: You can count any holidays falling within any leave taken toward employees’ total 12-week FMLA allotment.


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