Intermittent leave under the Family and Medical Leave Act (FMLA) continues to challenge employers. The FMLA regulations require employees needing leave for planned medical treatment to make reasonable efforts to schedule such treatment in a manner that does not disrupt unduly the employer's operations, subject to the approval of the health care provider. See 29 CFR § 825.203 and 29 CFR § 825.302(e).

Despite this, employers still struggle with employees who fail to follow this process. Consider the following scenario:

Mary, an ER nurse, works for ABC Hospital. Mary attends regular therapy sessions for her fibromyalgia every Thursday at 3:00 p.m., which is one of the busier times for the Hospital. Recently, Mary started having flare ups requiring "as needed" treatment. Over that past 4 months, Mary's "as needed" treatments are on late Friday afternoons. Mary did not clear either the Thursday sessions or the "as needed" sessions with ABC Hospital in advance. Rather, she simply told the Hospital that she would be absent every Thursday and she often calls in the "as needed" treatments just a few minutes prior to her shift. Mary's attendance at the Thursday and "as needed" sessions are disruptive to business operations and result in staffing shortages and delay.

What recourse, if any, does ABC Hospital have?

Step 1: Look at planned treatment requirements in the regulations!

Mary must make a reasonable effort to schedule her planned, regular medical treatment so as not to "disrupt unduly" the Hospital's operations. She also must consult with the Hospital before scheduling treatment and work with them on a mutually agreeable schedule.

Here, Mary did not utilize this process. So what should the Hospital do now? The FMLA regulations provide that in this situation, the Hospital should "initiate discussions" with Mary and require that she attempt to make arrangements relating to her planned treatment schedule, subject to the approval of the health care provider.

In other words, the Hospital is well within its rights, subject to the approval of Mary's health care provider, to request that Mary reschedule her regular therapy sessions to a more convenient time if the 3:00 p.m. Thursday sessions are unduly disrupting its operations.

The Hospital should consider entering into a written agreement with Mary documenting the agreed-upon schedule. For example, this type of written agreement was helpful evidence in the case, Amley v. Sumitomo Mitsui Banking Corporation, (S.D. N.Y. 2021).

Step 2: Enforce Policy and Call-In Procedures Consistently

But what about Mary's "as needed" sessions that seem to fall only on Friday afternoons?

This is a bit trickier. The "as needed" sessions are likely "unforeseeable leave" rather than planned medical treatment. That means Mary must provide notice as soon as practicable. See 29 CFR 825.303.

In this situation, the Hospital should ask Mary why she calls in only a few minutes before her shift as that is not likely "as soon as practicable." The hospital should also make sure Mary is following its call-in procedures and ensure that the procedures are clearly communicated to all employees and consistently applied.

Step 3: Seek Recertification!

Given Mary's "as needed" therapy sessions are always on Friday afternoons, the Hospital could treat this as a reason to "cast doubt" on Mary's stated reason for the absence and use the recertification process permitted by the FMLA regulations. 29 CFR 825.308

Step 4: Consider an Alternative Available Position

Finally, if scheduling challenges with Mary continue, ABC Hospital should consider transferring Mary to an alternative available position to better accommodate her schedule and medical treatment requirements. 29 CFR §825.204

Remember though: Although equivalent duties are not required, the alternative position must have equivalent pay and benefits. Further, the Hospital would need to consider any obligations it may have under the ADA before making this transfer.

Bottom line, the good news is employers are not without recourse in this situation but make sure you confer with your employment law attorney before making any final decision.

Reliance Matrix Can Help!

Reliance Matrix offers employers leave administration, including federal and state family and medical leave solutions and accommodation services. For more information, contact your Reliance Matrix account manager or send us a message to AbsenceMentor@rsli.com.

Through its insurance and administrative services entities, Reliance Matrix offers integrated leave management services involving the FMLA, state-mandated paid family and medical leave and accommodation solutions. Product features and availability may vary by state. For more information, please contact your Reliance Matrix account manager, or reach us at AbsenceMentor@rsli.com.