Event Archive

FMLA and Intermittent Leaves

This information-packed webinar provides an overview of the regulations for FMLA and intermittent leaves. Topics covered include: FMLA and military entitlement, eligibility for FMLA and intermittent leave, how to handle an employee’s job duties in cases of intermittent leaves, and what not to count as FMLA leave.

Contact Info

LANDEGGER BARON LAW GROUP

Marie D. Davis, Esq.

marie@landeggeresq.com

Los Angeles Office:
15760 Ventura Blvd., Suite 1200 Encino, California 91436
(818) 986-7561


Ventura County Office:
751 Daily Drive, Suite 325 Camarillo, California 93010
(805) 987-7128

NOVATIME TECHNOLOGY, INC.

Scott Rose, Enterprise Sales

scott.rose@novatime.com

1440 Bridgegate Dr., Suite 300 Diamond Bar, California 91765
(909) 895-8100

Questions & Answers:

Q1

How do you handle an employee who has a chronic condition that uses it be late to work almost every day? This employee also has another night time job

A1

You are able to engage in an interactive process and explain to them that part of the essential function of their job is to be there on time. Try to change their hours or job duties. If not, suggest a leave of absence until they can manage their condition.

Q2

I have a question regarding Physical Therapy and whether regular appointments (2-3 per week) triggers FMLA leave, even if they weren't technically gone for 3 full days.

A2

If the regular appointments are going to last for 3 or 2 months, it will trigger FMLA.

Q3

Is an employee eligible during pregnancy?

A3

Pregnancy is not covered under FMLA for intermittent leave. It is only if the employer approves it. For regular FMLA leave, an employee can use it for pregnancy. Remember that in California, though, a pregnant employee is covered for intermittent leave regardless of the employer’s policies.

Q4

If an employee doesn't want to pay their portion of insurance while on FMLA, do they have the option to turn off benefits such as dental, vision, etc but keep their medical only?

A4

It is recommended not to allow them to lapse any of their coverage. There is little benefit to either the employee or the employer. You should pay their portion of their benefits until they return and then try to recover the payment.

Q5

For salaried employee in CA if they work intermittent leave with partial days can you dock their salary if they have no PTO?

A5

Yes, you are allowed to dock an employee’s paycheck so long as they have no sick leave or vacation leave or any other pto available to them.

Q6

Marie was saying you had to put an employee back into a similar type job, pay, etc., but I wondered how close you had to be with the shift--could you move, if business need was proven, to a second shift. She talked about a 2-hour swing (starting 2 hours later), but this is more drastic.

A6

Be careful with this. You would have to be able to substantiate your reasons for doing this. If you have a good reason for it, yes it is something you can do. The job must be substantially similar in pay, duties, location and schedule.

Q7

To clarify - If an employee wants to take intermittent leave to care for a seriously ill parent we don't have to grant intermittent leave?

A7

Intermittent leave can be granted to care for a child during the child’s first year of life, but only if the employer approves the leave. You can deny intermittent leave for parental care. But you cannot intermittent leave to an employee who wants to take it to care for the serious health condition of their parent or child.

Q8

When you say deny parental care, are you referring to care of parent, or what is "parental care?"

A8

This refers to baby bonding. Under straight FMLA (with no supplemental state laws) you can deny FMLA leave for after-birth care.

Q9

Related to 50 employees in 75 miles, does that include sites that are within 75 miles of each other and those sites total 50 employees? For example, a site has 10 employees and it is 25 miles from a site with 45 employees.

A9

Yes, it would apply in this situation.

Q10

If an employee does not want to use FMLA, can an employer require they take FMLA leave for a medical leave?

A10

It is your duty and responsibility to inform the employee about their rights. If they do not use FMLA, they lose the protection provided with it.

Q11

What size employers would benefit most from this FMLA software, NOVAtime?

A11

NOVAtime FMLA module. You need to balance the cost of the software and potential risk and liability.

Q12

What if a person chooses to use sick and vacation leave for a few hours each week b/c they have so much built up, but has not formally requested coverage under FMLA - at what point do we need to cover them as FMLA vs them just using up their paid leave?

A12

If you keep employee leaves limited, and have an existing policy about use of leave this will be less likely to be a problem. Additionally, having these policies in place allows you to sit down and discuss the violation of policy with your employee.

Q13

I think I just heard you say -- if the employee has used up the FLMA leave of 12 weeks, you have the responsibility as an employer to continue to allow leave as a "reasonable accommodation." Right?

A13

If you go to the NOVAtime website, you can check the information on ADA. FMLA cannot be used to fire employees after it has been exhausted. Yes, under the ADA extending a leave of absence is considered a “reasonable accommodation;” and the biggest trap that employers fall into is terminating someone after they have exhausted their FMLA leave.

Q14

Do you have a sample of that letter telling employees what will happen when they are released but have been gone for an extended time (what you are talking about with Strategy #10)

A14

Yes, please email Marie for the sample letter.

Q15

How do you deal with employee that complains of migraine headaches and their disability is indefinite?

A15

You need to sit down the employee, explain what essential functions they are missing, then require them to get a doctor’s note, evaluate their restrictions, and determine if you can accommodate them. It’s called engaging the “interactive process.” If you truly cannot accommodate them, then you can extend their leave of absence until they have been cleared to return to work.

Q16

We have 38-39 employees, One employee was on "FMLA" when I got here. She takes off at a whim to go take care of her parent. Then she will come back to work. This could accrue at any time during the work day or work week.

A16

You need to get recertification to determine if they are still able to go on FMLA. If it is truly an FMLA situation you may determine if you can accommodate it.

Q17

Can you go over the PTO where you make the employees use it during the leave?

A17

An employer can make an employee use vacation and sick time while they are on FMLA leave. But in California, sick time belongs to the employee. Technically, they do not have to use it while on leave- but they also “lose” sick time if they don’t use it, so there’s not a huge benefit to them not using it.

Q18

It appears this has been going on for 3 years. With no tracking. My question is this, I should impliment the FLMA process. Have her and her supervisor sign off on this agreement. Have a tracking for these times she is off for FMLA? is there anything else I should be doing?

A18

You definitely need to give her FMLA notice, track the hours she has worked, her eligibility hours and the hours she is taking. And if she is disrupting your business operations and you can clearly show that she is, then you can consider restructuring her job to better accommodate her and your needs. I would not recommend terminating her without speaking with an attorney and really going over the situation in detail.

Q19

If an EE has exhausted their FMLA and was placed on a Personal Leave and also exhaused back, they have no Est date of return or release, can you than discharge them? How would that work if they are on Worker’s Compensation concurrently?

A19

I would never recommend discharging them. Simply keep them on an indefinite leave of absence and let them know that when they are able to return, you will place them in the first position for which they are qualified for. I have a letter you can email me for a sample.

Q20

Can an employee use paid time off DURING an intermittent leave? You stated they can use paid time off AFTER intermittent leave. Would you clarify?

Q20

I must have been unclear. Yes, an employer MAY require the employee to use vacation and sick time during their leave.

Q21

Can this be managed for individual states...like Illinois and Illinois FML law?

A21

You always want to be sure you designate the leave as FMLA and when it is exhausted, allow the employee to remain on a leave of absence as a “reasonable accommodation.”

Q22

What if the employee hands in a DR's note to HR saying he need 2 or 3 days off and he refuses FMLA and his supervisor says we cannot grant you those days off and he takes them off anyway?

A22

He shouldn’t refuse FMLA. But I guess if you designate it as FMLA and he blatantly refuses it, and he has no sick or vacation time available, you could terminate him for failing to follow your call-out procedures. But, if he has a note and needs time off, where you run the risk of trouble is with the ADA at that point. He can claim disability discrimination.

Q23

We are a school. Are there exceptions to the intermittent rule for educational staff? A teacher can't just arrive 2 hours late to class for example. What are the rules for those types of positions? Thank you!

A23

Most schools operate under a collective bargaining agreement that would dictate. However, if the teacher is seeking medical treatment while on intermittent FMLA leave, you can require them to schedule that treatment so as to not disrupt the normal business operations of the school.

Q24

When are your recommendations on requesting the employee contact the health care provider for clarification, vs contacting the health care provider yourself as HR/the Leave Administrator?

A24

For intermittent leave, I recommend requesting re-certification from the doctor every 60 days.

Q25

How should an employer handle employees who do not pay their portion of the benefit premiums after 60 days?

A25

Deal with it when the employee returns from leave. It would cost you much more problems to let their insurance lapse. You do NOT have to cover their dependents that you do not normally cover though.

Q26

What is considered a family member?

A26

For FMLA, it is spouse, domestic partner, parent, and child.