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HR
Matters E-Tips
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THIS WEEK'S E-TIP
Can a FMLA Leave Become an “Undue Hardship”? |
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Editor's Note: These
question and answer HR Matters E-Tips articles are taken from real
questions submitted by our subscribers, a unique feature of the HR
Matters Tools and Resource Center online service. If you, too, would
like access to our expert editors, click
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| Employees who
take FMLA leave are entitled to up to 12 weeks of job-protected leave in
a 12-month period. But are there any limitations on this leave? Is there
a point when you can deny the time off because it creates an undue
hardship for the organization? |
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| Q: We have an
employee who has a chronic serious health condition covered under the
Family and Medical Leave Act (FMLA) and often needs to take time off on
an intermittent basis. In the past, her FMLA leave requests were not a
problem because she typically took off just a few days over the course of
several months. However, her condition has deteriorated and now she is
averaging a day off a week. This schedule is causing a hardship on her
coworkers who have to pick up her work. Can we deny her leave as an undue
hardship (like the ADA allows) or even terminate her if she cannot come
to work on a more regular basis? |
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A: Probably not. The FMLA does not include an
“undue hardship” defense like the Americans with Disabilities Act (ADA)
does, so if the employee has unused FMLA leave and her need for leave
meets the FMLA criteria, you must allow her to take the leave. However,
there may be some steps you can take to ensure her continuing need for
leave and to work with her to help prevent disruption.
Under the ADA, the federal law prohibiting discrimination against the
disabled and requiring reasonable accommodation such as leaves of absence
for treatment and recovery, employers can deny an accommodation request
if the accommodation would cause the employer an undue hardship. The term
"undue hardship" means significant difficulty or expense in, or resulting
from, the provision of the accommodation. The ADA contemplates that the
employer could be accommodating an employee’s disability on a long-term
basis and so allows for the possibility that some accommodations may not
be reasonable to provide. However, the undue hardship standard is very
difficult to meet and requires employers to show that the accommodation
involves significant difficulty or expense; is unduly extensive,
substantial, or disruptive; or would fundamentally alter the nature or
operation of the business. Thus, the defense is only available in very
limited circumstances.
(Download free
Leaves of Absence model policy including HR best practices and legal
background.)
The FMLA, in contrast, is intended to cover relatively short-term medical
conditions (though an ADA disability typically also is a serious health
condition covered under the FMLA) and so simply mandates that eligible
employees may take up to 12 weeks of leave in a 12-month period. All the
employee has to do is meet the eligibility requirements, for example by
working for the employer for the prerequisite 12 months and 1,250 hours
in a year, and have a serious health condition covered by the FMLA. Then
the employee is entitled to take the full 12 weeks of leave any way the
employee needs it, whether in full weeks of time or, if medically
necessary, on a reduced work schedule basis or intermittently. There is
no exception for leaves that are unduly disruptive to the operations of
the employer or to other employees in the workplace.
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Accordingly, the employee in question
likely is entitled to take the full 12 weeks of leave even if she takes
it a day a week if she has a medical necessity for taking intermittent or
reduced leave. But, here are seven tips for managing FMLA intermittent
and reduced work schedule leave that you can apply to this employee:
1. Make sure you have the necessary medical certification for the
employee’s serious health condition and that it includes specific
information regarding the medical need for intermittent or reduced
schedule leave and how that time off will be needed. If the medical
certification is incomplete or insufficient, require the employee to
provide the necessary information. (A certification is incomplete if the
employer receives a certification but one or more of the entries has not
been completed. A certification is insufficient if the employer receives
a complete certification but the information provided is vague,
ambiguous, or non-responsive.) Further, you can require a second and even
third opinion certification if you have reason to suspect the validity of
a medical certification. If the employee does not provide the appropriate
medical certification, you can delay or even deny the leave.
2. Discuss the employee’s scheduling requirements in detail and work to
come up with a schedule that meets both her medical and your operational
needs. If the need for intermittent leave or a reduced leave schedule is
foreseeable based on planned medical treatment, the employee must make a
reasonable effort to schedule the treatment to prevent disruptions of
your organization’s operations. |
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3. Maintain and
enforce a policy requiring employees to call in when they must be absent
because of illness. Make sure your employee understands that the policy
applies to all FMLA leaves and enforce it consistently.
4. Monitor timing of absences. You should investigate any suspicious
patterns of absences, such as those that continually occur on Fridays and
Mondays (to extend weekends) or before or after holidays and take action
if they are not legitimate.
5. Track leave carefully. Since intermittent and reduced schedule leave
can be taken in small blocks of time, it is important to make sure you
keep track of the total of number of hours of FMLA leave an employee
takes to ensure she receives the appropriate amount.
6. Require the use of paid leave for all FMLA absences and dock employee
pay once the paid time off is exhausted. Remember, even exempt employees
may have their salaries docked for full or partial day FMLA absences.
7. Consider requiring recertification of the medical condition every six
months, as allowed by the FMLA regulations to ensure the continued need
for intermittent and reduced work schedule leave. The six-month
recertification is not subject to second or third opinions. If you do not
require recertification at six months, be sure to require a new medical
certification every 12 months. The FMLA allows the annual medical
certification, and this process will help you monitor whether the
employee’s need for leave has changed.
(Download free
Leaves of Absence model policy including HR best practices and legal
background.)
Remember, too, even if the employee completely exhausts her 12 weeks of
FMLA, you may have to allow her to take additional leave as an
accommodation of a disability under the ADA. But, at that point, you
could consider whether the additional leave would be an “undue hardship”
for your organization. |
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Content for your
HR Matters E-Tips newsletter is developed from our
flagship publication, the
HR Matters Tools and Resource Center, featuring
the Personnel Policy Manual System (PPMS).
Subscribers to the PPMS and HR Policy Answers on CD can find more
information on the FMLA and intermittent and reduced schedule leave in
Leaves of Absence, Chapter 703, note 40, and on medical certification in
Leaves of Absence, Chapter 703, note 33.If you don’t have access to the PPMS, but would like to have a free, no-
obligation 14-day review, go to:
www.ppspublishers.com/ppm-ez.htm
Or just give us a call at 1-800-437-3735. |
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YOU CAN TRUST PPS
Information provided in HR Matters E-Tips is researched and reviewed
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law attorneys. However, it is not intended as legal advice. Readers are
encouraged to seek appropriate legal or other professional advice.
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