As Des Moines employment lawyers and Des Moines FMLA lawyers, we receive many calls concerning issues under the Family and Medical Leave Act. The most common type of claim, termination related to an FMLA absence, also implicates our practice as Des Moines wrongful termination lawyers. But we occasionally also hear about employers who are engaging in other types of FMLA interference.
One form of FMLA employer interference involves an employee’s right to FMLA leave in the form of a reduced schedule or intermittent absences. Those FMLA options contemplate a temporary change to the employee’s regular work schedule to address the employee’s own medically-certified serious health condition or a medically-certified need to care for a covered relative who has medically-certified serious health condition. Employers and employees tend to not be as familiar with those FMLA rights as they are with the right to standard full-time FMLA leave. FMLA confusion can arise when employers and employees are not familiar with the key aspects of reduced scheduled or intermittent leave under the FMLA.
First, unlike full-time FMLA leave, intermittent FMLA absences or a reduced schedule are not available when the sole reason for such a request is the birth or adoption of the employee’s child. Those options may be available if necessary to recover from pregnancy complications or to care for a newborn child with a serious health condition. So be aware of that distinction when applying for relief under the FMLA.
Second, the same notice and medical certification requirements apply to intermittent leave or reduced schedules under the FMLA as to standard full-time FMLA leave. We summarize employee requirements for FMLA leave notices on our Family and Medical Leave Act webpage. Also, please note that for “caregiver leave” (leave to care for a family member), there must be appropriate medical certification not only of the other person’s serious health condition, but also of the necessity of the employee’s reduced schedule or intermittent absences to provide care.
Finally, unlike full-time FMLA leave, the terms of a reduced schedule or intermittent leave are subject to negotiation and agreement between the employee and the employer. That’s because a reduced schedule or intermittent leave doesn’t offer the same stark here-or-not-here delineation that you have with full-time leave. Because an employee on a reduced schedule or intermittent leave is still working, just not as much, a reasonable effort must be made to avoid undue disruption of the employer’s business. To avoid disruption, it may be reasonable for the employer to instruct the employee to transfer to another position with equivalent pay and benefits during the time that the employee will be on a reduced schedule or eligible for intermittent FMLA leave if that better accommodates the reduced schedule or recurring leave than the employee’s regular position.
Like all aspects of the FMLA, situations involving a reduced schedule or intermittent leave work out best when everyone involved engages in good communication about the employee’s situation. Employees need to be clear with their employers about their situation, employers need to be clear with their employees about what they need and what they’ll be able to do for the employee, and the medical providers who submit FMLA healthcare certifications need to submit comprehensive forms that are actually helpful and informative to the employee and employer. The origins of many of our FMLA cases can be traced back to a breakdown in that FMLA triad.
Please feel free to contact us if you need the assistance of a Des Moines FMLA lawyer.