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Understanding Intermittent FMLA Certification and Use
Mar 11, 2019


BY:  Max Rieker, Esquire

The Family and Medical Leave Act of 1993 (“FMLA”) was created “to balance the demands of the workplace with the needs of families.”[1]  In a nutshell, this law requires certain employers (including government employers) to permit unpaid time off for covered employees to handle qualified medical and family conditions.  There is absolutely no requirement under the statute that any employee be paid for FMLA time off which is strictly FMLA time and not in conjunction with other time off such as paid sick leave or paid vacation time.  FMLA leave includes time off for such things as personal or family illness or injury, family military leave, pregnancy, maternity leave, adoption of a child and placement of a child in foster care.

Since the promulgation of this landmark law, an incredible amount of time, effort, and resources have gone into enforcing and interpreting the requirements of the statute.  Like other employee organizations, the OPBA has engaged in countless battles against employers in order to promote and protect the interests of its membership when it comes to FMLA interpretation.

Certain aspects and requirements of the FMLA are clear cut and need little interpretation.  Others, however, are very fact and interpretation specific.  One of these areas in need of constant interpretation is intermittent FMLA certification and use.

There are two basic kinds of FMLA usage.  One is for a specific event or time-defined period.  These instances relate to an event or a series of events such as a surgery, recuperation from an injury, a pregnancy/birth, etc.  These specific event usages typically have an expected end to the FMLA use and are typically for one continuous period of time.

The other type of FMLA usage is referred to as “intermittent use” which is use that is not necessarily continuous in nature.  In other words, one may need to use time or not need to use time based on the periodic necessities of the certified condition.  Intermittent use may be for a defined period of time or, if the condition is chronic, may be for a period that lasts until the conclusion of the affected employee’s working career.  When an employee seeks to be approved for intermittent use, he or she must be certified by an appropriate caregiver (i.e., physician, psychologist, etc.).

When the leave is for an employee’s own serious health condition or the serious health condition of a covered family member, the employer may request recertification no more often than every 30 days unless certain conditions exist.  If the certification indicates that the “minimum duration of the condition is more than 30 days, an employer must wait until that minimum duration expires before requesting a recertification.”[2]  In other words, if a medical certification indicates that an employee’s intermittent condition is expected to last for a period of 90 days, then the employer is prohibited from asking for a recertification until the 91st day.

However, an employer is permitted to require recertification every six months no matter what.  Even if the employee has a chronic condition such as multiple sclerosis or some other incurable condition which will periodically require the employee to be off work, the employer is still permitted to require recertification every six months.  Some employers choose to require recertification for longer periods of time, but that is the employer’s choice.

Employer policies that require recertification in less than six months for conditions lasting six months or more are unlawful.  The court in Harcourt v. Cincinnati Bell Telephone Company held:

“In this case, CBT’s policy of restricting intermittent leave to ninety days as a matter of course regardless of the health provider’s certification that the employee needs more than ninety days of intermittent leave is a plain violation of § 825.308(b) where no other exception applies.  The Court notes that CBT never challenged the validity of any certification tendered by Plaintiffs in this case, nor does it contend that any other exception applies.  It follows then that CBT violated Plaintiffs’ FMLA rights by arbitrarily requiring them to recertify their FMLA-qualifying condition every ninety days when their healthcare providers certified that a longer period of leave was required.”[3]

It is extremely important to note that using FMLA time does not provide a blanket shield to any employee when it comes to violating other leave usage policies.  FMLA does not necessarily protect employees from allegations of pattern abuse of sick leave or inappropriate use of sick leave.  If an employee takes time off using paid sick leave for an FMLA-certified condition and is caught by the employer doing something that he should not be doing, then the FMLA is no defense against such an allegation.  Employees still bear the burden of adhering to lawful policies.

If your workplace has a practice or policy related to time off that you believe does not comport with the requirements of the FMLA, please contact your OPBA representative.  If the employer’s FMLA recertification or usage policies conflict with the requirements of the FMLA, the employer policies will be stricken.  Federal law will trump employer policies on this topic, but it is up to the employees to challenge any unlawful policies.  The OPBA can be instrumental in effecting such change for your benefit as it has done in many workplaces throughout Ohio for many years.

[1] “Findings and Purposes,” 29 U.S.C.§2601.

[2] 29 C.F.R. § 825.308(b).

[3] Harcourt v. Cincinnati Bell Telephone Co., 383 F. Supp. 2d 944 (S.D. Ohio 2005).

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