Commenters Clash Over FMLA Intermittent Leave Rules

“What I am seeing with increasing regularity are FMLA requests for employees to care for an elderly parent who is ill and not able to afford a caregiver to attend to his/her needs,” an FMLA administrator writes in one comment. “These are usually for intermittent leaves that will allow the employee to chauffer their parent to the doctor [or] attend to their parent post-surgery.”

But employers and their representatives also wrote to complain that one Labor Department FMLA regulation, which defines a serious illness as an illness that incapacitates a worker (or a worker’s close relative) for 3 or more consecutive days and requires 2 visits to the doctor, can end up leading to ordinary, uncomplicated colds and earaches being defined as serious illnesses.

In addition, many doctors fill out FMLA certification forms in a perfunctory way, and the privacy provisions of the Health Insurance Portability and Accountability Act often make getting any information from doctors to verify medical certifications difficult, employers and others write.

“More than one provider has written ‘HIPAA’ across the form and returned it,” according to a letter submitted by an executive from a disability claims processing unit of American International Group Inc., New York.

Meanwhile, because employees with chronic conditions, such as asthma or diabetes, can take FMLA leave in very small increments, and the rules for when employees have to notify employers about FMLA leave are unclear, some employees seem to use FMLA leave for reasons other than dealing with the chronic conditions, according to employers and other commenters who spoke for employers.

At one manufacturer, for example, “our payroll system allows for increments as few as 3 minutes, and one facility had over 200 incidents of 3-minute FMLA uses in 2005,” a benefits manager writes. “We strongly suspect that our incidents of 3-minute FMLA leave are used to excuse tardiness.”

In some departments at some employers, 75% to 100% employees are making use of the FMLA intermittent leave provisions, a labor lawyer writes.

At Southwest Airlines Inc., Dallas, use of FMLA intermittent leave “plummets on Dec. 25 Christmas Day each year when triple overtime is paid,” an airline executive writes. “FMLA usage is near its peak the day before Christmas and jumps the day after, but somehow nearly all those employees who have been out on FMLA feel better on Christmas day and are able to come to work.”

A manager of a 911 call center in New York City says 10 of the 27 employees in the 911 division are certified for FMLA.

When the FMLA-certified employees call in sick, “the remaining employees are working an enormous amount of short notice overtime and are denied their own personal and family time in order to cover these absences,” the call center manager writes.

Many commenters who wrote on behalf of labor groups defended the current rules and said they are seeing employers make overly aggressive efforts to question FLMA requests.

“Several commenters stated that employers repeatedly reject certifications as incomplete without specifying what additional information is necessary, leading to a prolonged and frustrating back-and-forth process,” Lipnic and DeCamp write.