The Special Challenges of Intermittent FMLA and State Family Leave Laws

Jul 20, 2017


Even though the Family Medical Leave Act (FMLA) has been around for almost 25 years, it is often still the source of major challenges for HR professionals. While the basics of the law are straightforward, most of the challenges come from trying to operate a business efficiently and properly administer FMLA leave when the requests are intermittent.

Why Intermittent FMLA is Tough

Intermittent FMLA occurs when an employee takes a day or two off suddenly one week and then a few more days some weeks down the line. Taking leave in this way is extremely disruptive because there is no way to plan for it. As such, work assignments often need to be changed at the last minute or simply left until the employee comes back.

It may also be more difficult to track and administer. If an employee is terminated for their disruptive leave behavior, it can often trigger FMLA litigation. One small mistake in the manner in which days or notice requirements are tracked can end up costing a company significant amounts of money in legal fees, fines, and damages.

Employees taking intermittent FMLA leave may also generate resentment in other employees. Because of the confidential nature of FMLA, it can put HR professionals in an awkward situation as they try and appease angry co-workers without being able to explain what the underlying issue is.

It is recommended when dealing with intermittent FMLA situations, that HR professionals need to be well-organized, consistent, and keep open lines of communication. 

Challenge Posed by State and Local Laws

Employers that work across different cities and states face an additional challenge- they often must deal with a patchwork of different, and often conflicting, laws, rules, and regulations.

Many states have their own versions of FMLA that extend the benefits to more employees. But, no two states have the exact same version. Some cities and counties have also decided to regulate leave policies. These requirements all use different standards for what constitutes proper leave, the size of covered employers, when an employee qualifies for leave, how much leave an employee is allowed, and notice requirements.

A company with more than one location will need to spend more time auditing internal policies to ensure compliance with the different state and local leave laws. When dealing with a leave request, HR must run through several different steps to see if the employee qualifies or not for leave under all of the different applicable laws.

These disparate policies also mean that employees in one location may have access to significantly different amounts of leave than employees in another location. This can affect everything from morale to productivity.

As the federal government seems poised to enter a period of regulation retrenchment, it seems likely that states and cities will be more inclined to step into the void and create even more new rules and regulations. This will only further complicate the job of HR professionals.

Intermittent FMLA leave and complying with state and local leave laws may be the biggest current challenges for most HR professionals. But, these challenges can be successfully met by taking time to carefully document leave, monitor changes in the regulations, and regularly auditing compliance practices.

Todd Miller

Written by Todd Miller

Director of Marketing, DHR

Todd leads DHR’s marketing department and is responsible for overall marketing strategy and execution. With nearly 15 years in the sourcing services and solutions space, Todd provides interesting insight on a variety of topics in this fast-paced and ever-changing industry.

Todd lives in Scottsdale with his two daughters and Collie/Shepard. One is a good boy.

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