Family Medical Leave Act: Update on Intermittent Leave

Managing time and attendance has always been a bug-a-boo for supervisors, largely because they find it to be a distraction from what they consider to be more important, that being the workload of the unit.  Addressing productivity is always important, especially for an employee who is occasionally or more frequently absent, which only adds to a supervisor’s frustration.

Over the past few years with the reductions in federal spending, coupled with the loss of senior human resources specialists, supervisors are feeling far more disadvantaged than ever before. This is because technical training of both groups on various HR topics was left on the budget cutters’ floor.  And, agencies are still far from being out of the woods as austere budgets will continue.

In my opinion, the continued lack of training will only drive up costs.  As more seasoned supervisors retire, those who replace them will not have had the formal education in the many areas they will be held accountable.  We cannot afford the training, but we can afford the settlement costs. This is never a prudent approach.

The purpose of this article is to cover some of the basics, or as you might hear in a bridge game, “let’s review the bidding”.

While agencies are generally aware of their responsibilities under this entitlement Act, they are occasionally reluctant to exercise those rights. This reluctance is often driven by a lack of confidence, and perhaps reinforced by HR or the legal staff who themselves are afraid to assert their rights since it may invoke some grievance or appeal. Too often supervisors believe that their actions will not be supported by their upper management.  As a consequence, too frequently they believe FMLA, and the leave regulations in general, are designed to benefit only the employees at the expense of productivity. The lack of enforcement only breeds more organizational schizophrenia.

Whether the topic is FMLA or ordinary leave, adherence to the agency’s leave procedures must be pursued.  There is no doubt that enforcing the agency’s or collective bargaining leave procedures, requiring complete and sufficient medical information on the necessity of long-term or intermittent leave, accurately capturing and reporting on the leave taken is time consuming.  Consistency is in the interest of both the employer and the employee.

In an earlier article I wrote that Congress has added to confusion to the administration of FMLA by giving Title I employees to the Department of Labor, 29 CFR § 2601 and Part 825, whereas the majority of the federal civil servants fall under Title II, whose entitlements are governed by the regulations from the Office of Personnel Management,   5 CFR § 630.1201.

Another respondent to one of my articles asked if Title II employees are barred from appealing FMLA claims to MSPB or the courts, then why is management so concerned if it is inconsistent about adhering to the regulations.

Indeed it is true the MSPB does not have jurisdiction over Title II FMLA claims (Howard vs. U.S. Postal Service, 102 LRP 31489, dated 6 September 2002), and the EEOC does not have standing over claims of FMLA denial (Randall vs. U.S. Postal Service, 100 FEOR 15383, dated 28 September 2000).

The simple answer is this: it is always a bad management practice to pick and choose which regulations it will adhere to, and a claim of FMLA interference can easily be packaged in with another allegation of discrimination or an appeal arising out of another disciplinary or adverse action.  This combination can provide the appellant with standing before a third party.

Regardless of whether or not an employee has a legal remedy through the appellate process, it should never deter management for taking action when action is necessary and warranted.

It is well understood that an employer cannot effect discipline for a person’s use of FMLA or to interfere with their FMLA rights.  This entitlement, however, does not cloak the employee in Teflon, nor does it provide them with some sort of blanket immunity for disregarding their obligations to their employer while enjoying their protected activity.

As a guiding principle, an employee’s protected status is irrelevant as long as management can prove that it would punish all employees equally for breaking the same rule.  This is a high burden for management, but not insurmountable.

FMLA regulations allow employers to request that employees make “every reasonable effort” to schedule “foreseeable” medical appointments and treatments “so as not to disrupt unduly the employers operations.”  For approved intermittent FMLA leave employers do have a few options.  These include:

Require the employee to provide complete and sufficient medical documentation that only supports the request for FMLA leave, but the need for intermittent leave as well

Ask for a second or third opinion if there is reasonable doubt that the original documentation does not appear consistent or authentic

Ask for re-certification if the circumstances appear to have changed

Require the employee to schedule intermittent leave for medical appointments or treatment sufficiently in advance for management to plan for an absence

Require employees to identify the specific days or leave occurrences as FMLA related

Ensure other routine medical appointments are not co-mingled under the approved FMLA intermittent leave

In a recent private sector situation the employer requested an employee to reschedule her medical appointment because her scheduled appointment interfered with an operational need. The employee filed a claim that the employer’s request constituted interference with her FMLA rights. The court disagreed with the claimant noting that her medical appointment was foreseeable  and that she had failed to provide her employer with sufficient notice (Hager vs. Department of Health, No. 12-3842, 8th Cir., 2013).

Another private sector case involved a termination that was appealed as retaliation for FMLA.  Management at the University of Pittsburgh Medical Center was unhappy with the attendance pattern of one of its research assistants and her inconsistent pattern of scheduling her leave, which was invoking a hardship on its operations and coverage.  She was fired for these reasons.

Just before she was fired she requested FMLA leave. This is not far from uncommon when a federal employee is placed on a performance improvement plan (PIP) or confronted with discipline for a conduct infraction.

In the UPMC case, the employee sued that her wrongful termination was in retaliation and interference with her FMLA rights.  While the hospital won their case in the lower court, they lost their case on appeal because management did not have good records to substantiate that her irregular attendance was excessively interfering and causing a hardship on their medical coverage and operations.

Employees on FMLA leave have no greater entitlement or protection  against discipline or termination for reasons unrelated to FMLA leave than they did before requesting or taking the leave.  The employer always has the burden to demonstrate that it would have disciplined or removed the employee, but for the protected leave.

What was crucial in this case was the lack of written documentation of lateness and absences when establishing misconduct and lack of adherence to established leave regulations.  This was management’s Achilles heel when a FMLA interference charge was claimed (Lichtenstein vs. UPMC, U.S. Court of Appeals, 3rd Cir., No. 11-3419, dated 3 August 2012).

Now, a reader might reasonably ask, why should we look at private sector cases when dealing with comparable issues in the federal sector? This is a fair observation, but reading these cases is instructive as to how third party tribunals review and consider fact patterns.  Moreover, it is not uncommon for federal appellate boards to reach out to private sector case law for guidance.

© 2016 Robert Dietrich. All rights reserved. This article may not be reproduced without express written consent from Robert Dietrich.

About the Author

Bob Dietrich has more than 37 years of federal human resources experience and he is a widely known trainer on FMLA, FLSA, Employee and Labor Relations, HR for Supervisors, and is available to bring training to your agency. It is far cheaper to bring the instructor to the class as opposed to the class to the instructor. He may be contacted through Dennis Hermann & Associates.

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