April 02, 2010

The federal Family and Medical Leave Act (FMLA) and its California counterpart, the California Family Rights Act (CFRA), allow workers to take time off each year to care for their own or a family member's serious health condition, or to bond with a new child.

Employers have complained about certain aspects of the law for years — particularly intermittent leaves. "The law is used by people with attendance problems," says Michael Eastman of the U.S. Chamber of Commerce. "You have an employee with chronic tardiness … who says it's for a health condition."

Many employers have pointed out that claimed health problems are especially prevalent on Mondays and Fridays, and unjustified intermittent leaves always create problems for staffing and productivity.

Get bamboozled or get sued — think these are your only options when it comes to reining in disruptive intermittent leaves? Think again. Join us next Tuesday, April 6, for an in-depth webinar on avoiding intermittent leave headaches.

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So what can you do? Although California employers cannot require employees to present a new medical certification for each instance of intermittent leave taken, you can take proactive steps to help curb abuses. Here are 4 ideas:

1. Track each intermittent leave absence against the medical certification the employee initially submitted. For example, if the medical certification indicates that the employee will need to be absent one day a week for six weeks to undergo medical treatment, the leave taken by the employee should be reviewed to ensure that the employee doesn't take more than one day each week or extend the leave beyond the six-week time period without obtaining additional medical certification.
2. Have the employee work with you in setting up a schedule that includes as many treatments as possible in off-work hours. For example, if an employee wants to be gone for a treatment every day at 2 p.m. and it's an hour's drive away, you can ask, "Could you do it earlier or later to minimize the impact?"
3. Transfer the employee to a position where absences are less disruptive. The law permits this, as long as pay and benefits remain equivalent to the previous job.
4. Make use of the new 2009 rules, which require an employee to reassert the specific condition for which intermittent leave is being taken for each absence. Thus, if an employee has approved intermittent leave relating to a serious knee injury, you should make sure that when the employee requests two days off, the employee verifies that the time off is related to the knee injury.

Intermittent Leave: Legal Headaches to Avoid when Designating, Administering, and Denying Periodic FMLA/CFRA Leave

Tracking and administering intermittent leave under the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) is extremely tricky. It's no wonder why: You have to make sure employees have met the requisite cumulative 12 months of service and 1,250 hours worked in the year prior to the leave, and that's just for starters. Then you need to determine when leave entitlement arises: When you learn of the request for leave, or when the first absence relating to a medical condition occurs?

Meticulous recordkeeping is a must so you can properly calculate partial-day absences that often occur when employees need to attend doctors' appointments or to care for family members with health problems that may or may not fall within the very explicit definition of "serious health condition" under the law.

As if that's not enough, you must know what "leave year" your organization uses (calendar, fiscal, or rolling 12-month period) and then accurately calculate the amount of leave-time remaining for a given leave year, and make sure that if you deny a request for leave that you're got a legal leg to stand on. You also need to figure out whether multiple leaves are running concurrently or consecutively, and take into account the nit-picky distinctions between California and federal laws.

And getting any one part of this process wrong, even through an innocent mistake, can cost you big. Join us on April 6 for an in-depth, 90-minute, interactive webinar — specifically for California employers — all about mistakes you can't afford to make when handling intermittent leave-related issues. Our expert will identify the real-life situations that could cause the most grief and give you practical insight on how to ensure that you are in compliance with federal law when tricky scenarios arise. You'll learn:

• Best practices for retroactively designating absences to count as FMLA/CFRA leave
• Common mistakes to avoid when calculating the amount of leave available for the rolling leave year
• How often you can ask for medical update when a current certification states that an employee is incapacitated for an undetermined period of time
• Errors in judgment you don't want to make concerning requests for leave due to chronic conditions, such as migraines
• The potential risks for retaliation claims stemming from the denial of job-protected leave and best practices for handling return-to-work issues following leave
• When it's safe to deny a request for intermittent leave
• How to prevent leave abuses without opening yourself up to liability
• When transferring workers or assigning them to alternative positions is a legally viable option
• The key distinctions between FMLA and CFRA you need to keep in mind

Register now »

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