Although HR professionals may often feel otherwise, the Family Medical Leave Act ("FMLA") is not an employee's passport to take protected leave whenever and under whatever conditions the employee pleases. In this edition of the Guide, we take a closer look at two issues that frequently arise under the FMLA: whether and how employers can curtail abuse of intermittent FMLA leave, as well as when and under what circumstances employers can terminate employees during an FMLA leave. In both of these areas, employers have far more flexibility than they might imagine.
Curbing Intermittent Leave
The FMLA allows employees to take FMLA leave on an intermittent or reduced schedule basis, meaning that they can take separate, sporadic blocks of leave - often lasting just a few hours - because of their own or a family member's serious health condition. Such leave is not available for the birth or adoption of a child after Wisconsin FMLA leave is exhausted unless company leave policies provide intermittent leave in such circumstances.
Additionally, employees can take intermittent leave only when there is a medical need for the leave and when they can demonstrate that their need for leave can be best accommodated through an intermittent or reduced leave schedule.
Tips for Employers
Such restrictions on the use of intermittent leave, without more, may not give employers much comfort. But there is more that employers can do to insure that employees taking intermittent leave do not abuse the privilege and disrupt the workplace:
- An employer can require an employee to work with the employer to schedule intermittent leave. The FMLA places an affirmative obligation on an employee requesting intermittent leave to consult with his or her employer in an effort to work out a treatment schedule for the leave so as not to disrupt the employer's operations. Thus, if an employee can procure necessary medical treatments during non-work hours or on the employee's day off, the employee must try to do so.
- When an employee requests intermittent leave, an employer may ask for information on its medical certification request form regarding the employee's projected number of treatments, dates of treatments, and the projected period of recovery following each treatment. With the employee's consent, the employer may also use its designated health care provider to ask the employee's health care provider whether the treatments might be scheduled at alternative times that would not require the employee to miss work.
- An employer is generally able to request recertification of an employee's need for intermittent leave at least once every 30 days. An employer should take advantage of opportunities to request such recertification to insure that the need for intermittent leave still exists. An employee must pay for recertification - which will prove increasingly significant as growing numbers of employees face doctor's office co-pays in the current environment of rising health care costs.
- After exhausting Wisconsin FMLA leave, an employer may also transfer an employee taking planned intermittent leave for medical treatments or to recover from a serious health condition to an alternative position if this would make the employee's periodic absences less disruptive to the employer's operations. However, the employee must receive pay and benefits while in the alternative position that are equivalent to those available to the employee when doing his or her regular job.
- Finally, an employer may dock exempt employees' pay when they take intermittent FMLA leave. The FMLA regulations explicitly allow an employer to do so without destroying a salaried employee's exempt status. Wisconsin's labor standards department follows these regulations. Keep in mind, however, that an employee could avoid a loss of pay by choosing to substitute accrued paid leave, such as vacation, for unpaid FMLA leave.
Terminating Employees on FMLA Leave
Contrary to what many employers still believe, employees requesting or taking FMLA leave do not receive absolute protection or immunity from termination or layoff. Although the FMLA prevents employers from terminating employees because they are on FMLA leave, employers may continue to layoff, discipline, and terminate employees - even while the employees are on FMLA leave - as long as they do so for reasons unrelated to the FMLA leave.
Courts have regularly held that employees on FMLA leave can be terminated for violating company rules, poor performance, or because of a reduction in force.
Shifting the Burden
When an employer takes an adverse action against an employee on FMLA leave, however, the Department of Labor takes the position that it becomes the employer's burden to prove that the employee would have been disciplined or terminated regardless of the request for, or use of, FMLA leave.
Complying with the FMLA's recordkeeping obligations - and demonstrating the existence of an FMLA policy and postings as well as a track record of allowing employees to take FMLA leave without reprisal - will help. Based on the particular circumstances surrounding the employee's termination, however, additional proof will ordinarily be required to establish that an employee was terminated for a legitimate, non-retaliatory reason unrelated to FMLA leave.
The following two scenarios are among the most likely to arise:
- Reductions in Force: When an employer has a valid business reason for conducting a reduction in force or for eliminating positions, an employee on FMLA leave can be laid off even while on leave - assuming the employee would have been laid off if the employee was still working. As is true in any layoff - regardless of whether the issue is a potential FMLA claim or, say, a potential age discrimination claim - the employer should not only be prepared to establish the business necessity of the layoffs, but should also follow prescribed, objective guidelines for determining who will be laid off, and why.
- Terminations for Misconduct or Poor Performance: An employer can also avoid liability when terminating an employee on FMLA leave if it can demonstrate that it had legitimate, performance-based motives for terminating the employee while on leave. The employer must be able to demonstrate why, if the employee's performance warranted termination, the employee was not terminated prior to going on leave. This is often less difficult than it may seem, because the grounds for termination often are not apparent until other employees who are pinch hitting for the absent employee discover what a mess their colleague has left behind. A number of courts have ruled that if any other employee would also have been terminated for such newly discovered performance problems, it cannot be discriminatory to terminate the absent employee - even if the only reason why the absent employee's problems were discovered in the first place was because the employee was absent on FMLA leave.
Lessons for Employers
There is no question that the FMLA remains among the most difficult laws for HR professionals to administer, and there is similarly no question that even flawless and aggressive application of your FMLA policy will still allow some employees to create havoc and headaches with their sporadic and unpredictable absences. But with intermittent leave and the termination of employees on FMLA leave - as with so many FMLA issues - employers have more options than they may realize.