It’s no secret that intermittent leave, whether under the Family and Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA), is difficult for employers to track and manage, but it is also an area that can spark lawsuits. What are the ins and outs of intermittent leave as an ADA accommodation and how can we make it work for employers and employees alike? Let’s take a look at the reasons employees request intermittent leave, typical conditions where intermittent leave is a consideration, when it is appropriate, undue hardship analysis, and what to do if you suspect abuse.
Intermittent leave basics Let’s first start by defining intermittent leave; intermittent leave is unscheduled leave taken in multiple blocks of time because of a single qualifying reason. When you think about intermittent leave, why do employees request this type of accommodation? Oftentimes, employees request intermittent leave in order to continue working through their illness, which typically helps with the healing process. If most employees had it their way, they wouldn’t choose to be sick and need intermittent leave, but it provides a way for them to continue to work and receive a paycheck. The Job Accommodation Network (JAN) lists three reasons employees request leave as a reasonable accommodation, particularly intermittent leave:
- To attend medical appointments related to an episodic or chronic medical impairment (e.g., diabetes, bipolar disorder, asthma, etc.)
- To obtain medical treatment (e.g., chemotherapy, physical therapy, surgery, mental health counseling, in-patient substance abuse treatment, dialysis, etc.)
- To recuperate from an illness or surgery, or exacerbation of symptoms associated with an episodic or chronic medical impairment (e.g., flare-up of symptoms associated with multiple sclerosis, intestinal disorder, epilepsy, back condition, major depressive disorder, etc.)
This is, of course, not an all-inclusive list; however it provides a frame of reference for types of conditions that require outside intervention for prolonged periods of time. In reviewing the reasons along with the conditions, intermittent leave makes sense.
When is intermittent leave appropriate?
JAN also provides some guidance on this, as well. Intermittent is appropriate:
- When there is no other effective accommodation; or
- When an employee is not eligible to take leave under FMLA, but has a qualifying disability under the ADA; or
- When an employee is FMLA-eligible, but requires additional time off beyond the 12-week allowance under that statute; or when an employee has exhausted paid vacation and sick leave and requires additional intermittent time off because of a qualifying medical impairment
EEOC guidelines note that, under the ADA, a qualified individual with a disability may work part-time in his/her current position, or occasionally take time off as a reasonable accommodation if it would not impose an undue hardship on the employer. If (or when) reduced hours create an undue hardship in the current position, the employer must see if there is a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned without undue hardship while working a reduced schedule. If an equivalent position is not available, the employer must look for a vacant position at a lower level for which at a lower level for which the employee is qualified. Continued accommodation is not required if a vacant position at a lower level is also unavailable.
With pressures of deadlines and productivity standards, front line supervisors may feel the weight of intermittent leaves as a disruption to the workplace, causing them to function at a great disadvantage. Training front line supervisors and managers to understand that intermittent leave is a part of doing business will go a long way and hopefully keep companies out of court.
Undue hardship and suspected abuse But what happens when allowing intermittent leave truly makes it difficult or impossible to continue your business operations? You may be able to assert an undue hardship case, although the EEOC outlines a detailed list of requirements to consider – including amount and/or length of leave required, frequency, flexibility, predictability, impact on coworkers and impact on operations. If an employer is not able to satisfy the EEOC’s requirements, they may not be able to assert undue hardship.
Intermittent leave can really help employees in a number of ways, but sometimes managers notice that the generous help that they have been willing to provide somehow turns into abuse. Employers ask, “What can we do if we suspect abuse of intermittent leave; the frequency and severity are more than the doctor specified and more than the employee requested?” I always tell employers to tread carefully; one absence outside of the listed frequency and severity on the certification does not mean that abuse is taking place. If an employer sees a pattern of abuse (3-4 times beyond what has been certified), they can then ask the employee for an updated certification reflecting the need for more intermittent absences. At that point, the employer may reevaluate whether the request constitutes a hardship.
Finding the right solutions for employers and employees Intermittent leave may be hard to manage and track, but it is in the best interest of the employer and the employee to provide these accommodations when appropriate, reasonable and practicable. Not only does an accommodation policy support recovery and encourage productivity, it is also the right choice when considering regulations and guidelines. When an employer is able to provide leave as an accommodation, but does not, they may land in court, facing possible penalties, fines and other restrictions.
If you have questions, we can help. Sedgwick’s job accommodation specialists are well-versed in requesting information from employees’ healthcare providers, confirming that impairment exists and requires reasonable accommodations, engaging in the interactive process with our clients’ employees, and presenting intermittent leave options for review and approval. We can recommend and document clear, specific, medically supported accommodations and support evaluation of a company’s ability or inability to reasonably accommodate as defined by the ADA.