Challenges In Managing Unplanned Intermittent Leave In The Senior Living And Long-Term Care Workplace

One of the biggest challenges for employers in the health care world is managing unplanned intermittent leave. Providing care 24 hours a day in a senior living or long-term care environment makes this particularly difficult.

Pursuant to the Family and Medical Leave Act (FMLA), an eligible employee may take up to 12 weeks of leave in a 12-month period for a number of reasons, including the employee's own serious health condition or the serious health condition of a parent, child or spouse. For a full time employee, that equates to 60 work days, and if it is taken in smaller increments, an employee can have frequent absences that can be very disruptive. Using a rolling 12-month period to measure leave entitlement, as many employers do, further complicates the management of intermittent leave, as employees who want to game the system will be aware of when they have more FMLA coming to them. Further, while an employer may temporarily transfer an employee who needs intermittent or reduced work schedule leave to another position that better accommodates the absences, that is only applicable to absences for planned medical treatment. In most cases, those who abuse intermittent leave are taking off for incapacity, i.e., the inability to work, not for planned medical treatment.

If the employee meets the eligibility requirements for FMLA (12 months of service with the employer, at least 1250 actual hours worked in the 12-month period prior to commencing leave, and he/she is employed at a facility with 50 or more employees within a 75-mile radius) the employee may seek leave on an intermittent basis (which is typically for a chronic condition) if the need for such leave is "medically necessary." The determination of whether a condition qualifies as an FMLA serious health condition, as well as whether the need for intermittent leave is medically necessary, is made by the employee's health care provider. While there are certain rights that employers have to validate an employee's request for intermittent leave, as a practical matter, once the leave is certified to be taken intermittently, the employee, in effect, "self certifies" any absences taken under FMLA. The employer may require the employee to call in the FMLA-related absences, but employers may not require a "doctor's note" (called a fitness for duty certification under the FMLA) to support such intermittent leave except under very limited circumstances. Further, FMLA is an entitlement law, and...