How should an organization handle a situation where an employee, utilizing intermittent FMLA to care for a parent with a serious medical condition, frequently leaves mid-shift without prior notice? The employee cites the need to “take care of” their parent, with minimal notice, which adds up against their FMLA leave.
While the employee’s right to take FMLA leave is acknowledged, the sudden absences—sometimes with as little as five minutes’ notice—create significant operational challenges and place additional strain on the team. How can an employer address such situations while balancing the employee’s rights and ensuring organizational continuity?
When employees are taking FMLA on an intermittent basis, it is understood that providing advance notice may sometimes be difficult, especially in cases where the family member experiences an unexpected flare-up related to their medical condition. These situations, by nature, can be unpredictable, and in such instances, the employee has the right to leave under FMLA as long as they notify the employer.
While it is important to review the frequency and duration of the leave as certified by the healthcare provider, if the employee is using their leave within the certified limits, there is little that can be done beyond ensuring compliance with the FMLA guidelines. It is advisable to speak with the employee to confirm that leaving unexpectedly for medical emergencies is acceptable, while also reminding them that, for foreseeable situations such as doctor’s appointments, they are required to provide reasonable notice as stipulated by the FMLA.
Employees are entitled to use their FMLA leave, and once the 12-week allotment within a 12-month period is exhausted, no additional FMLA leave will be available. It’s important to ensure that all FMLA hours are accurately documented and tracked. I recommend having a conversation with the employee to see if there are any ways the employer can assist in minimizing or avoiding the occurrences when they need to leave early. However, proceed carefully to avoid any actions that may interfere with the employee’s right to take FMLA, as this could be seen as a violation of the law.
Handling Intermittent FMLA Leave Request with Short Notice
1. Review the FMLA Certification
- Start by reviewing the employee’s FMLA certification to understand the frequency and duration of the intermittent leave. FMLA allows for intermittent leave, but the employee’s healthcare provider should specify the expected frequency (e.g., twice a week) and duration of such leave (e.g., a few hours or a full day).
- If the employee’s use of leave is significantly exceeding the certified frequency or duration, you can request a recertification to ensure that the leave is being used appropriately.
2. Clarify the Notice Requirements
- Under FMLA regulations, employees must provide as much advance notice as is practicable for foreseeable leave (e.g., planned doctor’s appointments or caregiving). While emergencies do arise, emphasize to the employee that when foreseeable, they should give notice as soon as possible.
- You may need to remind the employee of their obligations under FMLA to notify you of the need for leave in advance, when possible. If leaving mid-shift can be planned (for appointments or routine care), the employee must provide advance notice.
3. Establish a Communication Plan
- Create a clear communication plan with the employee for when they need to leave unexpectedly. Require the employee to notify their supervisor or HR as soon as possible when they know they’ll need to leave. If the situation is an emergency, they should communicate the urgency.
- Develop processes for coverage, where possible, such as cross-training other staff or identifying a backup plan for when the employee has to leave. If possible, discuss with the employee if they can provide longer notice (when foreseeable) so you can manage shifts effectively.
4. Discuss Potential Adjustments
- Have an open conversation with the employee about the challenges their intermittent leave is creating for the team and the business. You might explore whether there are any reasonable accommodations you can make that balance the employee’s need for leave with the organization’s operational needs.
- For example, if their parent’s condition requires frequent care at specific times, consider adjusting their work schedule to better accommodate both their caregiving duties and your staffing needs. You could also offer to explore remote work options if applicable.
5. Consider Job Modifications or Temporary Solutions
- Depending on the employee’s role, you might explore modifications to their duties to mitigate the impact of unexpected absences. For example, if their work involves critical tasks that need immediate attention, you could delegate certain responsibilities to other employees as part of a backup plan.
- You could also look into temporary staffing solutions or floaters to cover the unexpected shifts when the employee is absent on short notice.
6. Monitor Leave Usage
- Keep track of the intermittent leave usage and ensure that it aligns with the certification. If the employee’s leave usage starts to exceed the certified limits, you can require a recertification from their healthcare provider.
- Under FMLA regulations, you are allowed to ask for recertification every 30 days in the case of intermittent leave (or sooner if you have reason to doubt the certification).
7. Maintain Compliance
- Ensure that you remain compliant with FMLA regulations throughout the process. Employees have the right to take intermittent leave for qualifying reasons, and employers must accommodate that leave while following legal requirements.
- However, FMLA also allows employers to request reasonable notice and to manage abuse of intermittent leave. If you suspect misuse, you can follow legal procedures such as requesting recertifications or addressing non-compliance.
8. Explore Recertification if Needed
- If the employee’s leave usage becomes more frequent or unpredictable than initially certified, you can request recertification from their healthcare provider to confirm the need for intermittent leave.
- If there are patterns of absences that seem inconsistent with the medical condition (e.g., consistently leaving for the same non-emergency situation), this might justify recertification.
9. Document Everything
- Document all communications regarding the employee’s intermittent leave, including requests for time off, any conversations about notice requirements, and the impact on operations. Documentation will help you maintain clarity and compliance and protect the organization in case of any disputes regarding FMLA usage.
Conclusion:
Handling intermittent FMLA leave requires balancing the employee’s right to take leave for serious health conditions with the needs of the business. By setting clear expectations for communication, requesting recertification if necessary, and discussing potential accommodations, you can better manage the operational challenges while staying compliant with FMLA guidelines.
