Navigating intermittent leaves: 4 key strategies to stay compliant

Nearly two decades ago, the Department of Labor noted that intermittent leave was the “single most serious area of friction between employers and employees seeking to use FMLA leave.” And while much has changed since the 2007 report was issued, the challenges related to intermittent leave have largely stayed the same.

There are several reasons for this. First, the unpredictable and sporadic nature of intermittent leaves makes them difficult to track with laborious and time-consuming documentation. Second, these leaves have a high potential for misuse by employees. A recent online survey of more than 300 absence management professionals by my company, ComPsych, found more than a third (34%) said managing potential overuse was the most challenging part of intermittent leaves, with another 20% saying the hardest part was handling possible fraudulent use! The unfortunate reality of employee misuse can increase staffing costs while weakening the morale of other workers. When you combine all this together, it is easy to see why intermittent leaves are an area of “friction,” as they pose logistical and compliance challenges that can impact teams, productivity and eventually profit.

So what are HR and legal teams to do? Despite these difficulties, all organizations must remain compliant, or they run the risk of legal repercussions such as those seen in Render v. FCA US, LLC where an employer’s (and third-party administrator’s) instructions on intermittent leave led to a judgment against them. Here are four guidelines I recommend following to reduce your headaches while staying compliant.

Train your teams and maintain updated policies

In my view two of the most crucial, proactive steps an organization can take to effectively administer intermittent leave are to maintain clear policies and invest in training their employees – especially managers – on these policies. Ensuring managers understand the process as well as their role and responsibilities can empower them to make compliant choices and free them from navigating pathways through the regulatory complexities. Additionally, up-to-date policies make guidelines and expectations simple and clear for both the manager and the employee, reducing confusion about how leaves are to be reported, recorded or counted.

Finally, regular training of managers can equip them with the knowledge of how to handle intermittent leaves and how not to handle them. We have seen numerous cases where a manager’s comments were used against an organization and sink an employer’s defense no matter how comprehensive and well-tailored their policies. Mitigate this risk of liability by educating managers upfront so they understand the seriousness and potential consequences of an off-handed comment about someone’s intermittent leave.

Know your options

To successfully manage intermittent leaves, employers must truly know and understand their options under the law. From recertification to authentications, clarifications, second opinions and more, there are a variety of actions an employer can take. The appropriate action will be dictated by each individual situation, but it is important to know what each of these actions are and when they may be the best next step.

For example, if an employee only ever suffers from migraines on Fridays and an organization suspects misuse of their certified intermittent leave, asking for a second opinion from a different doctor may not be the most optimal course of action for a few reasons. Foremost, a second opinion generally examines whether the employee (or family member) suffers from the condition itself, not whether the usage of the leave is improper. Put more simply, the second opinion asks whether the person experiences migraines at all, not if they were experiencing migraines on the suspect dates in question. Additionally, second opinions are done at the cost of the employer, and if the second doctor disagrees with the first, the employer then needs to seek a third opinion to break the tie. Oftentimes after seeking (and paying!) for other opinions, the response is not clear cut leaving the organization in a precarious grey area.

On the other hand, the employer in this example could request a recertification instead. With a recertification, the original doctor can be asked about the continuing validity of the leave or why the employee’s usage may have changed significantly. While the causes of such changed usage can often be understandable and legitimate, this also affords the health care provider the information and ability to comment on any possible misuse. In this example a recertification is the more efficient and cost effective option for the organization, illustrating why understanding the nuances of various actions is so important.

Related: Employee leave management continues to be a struggle for many employers

Always go case by case

While clear policies provide a framework, there is no one-size-fits-all approach to intermittent leaves. Ultimately no two leaves are ever the same because no two employees, their conditions, or their need for leave, are ever exactly the same. It is absolutely critical that HR and legal teams recognize this and go into cases with an open mind, evaluating every leave request individually on its own merit and documentation.

Further, this thinking needs to be applied throughout the duration of an employee’s intermittent leave. I would especially emphasize the importance of closely reviewing a case, examining the details and variables at play particularly if there are issues and disciplinary action is being considered. It can even be beneficial, if not critical, to consult a third party partner to audit the case before taking any action that could potentially be viewed as retaliatory or prejudicial.

Invest in employees

Finally, our data shows that mental health leaves of absence alone have increased 300% from 2017 to 2023. Understanding that this is a growing concern that is driving up overall leaves, I would highly encourage organizations to introduce or increase their employee behavioral health and other wellbeing initiatives. Whether it be traditional counseling sessions, wellbeing coaching, digital platforms or other alternative benefits, these proactive, upfront investments can pay dividends by helping to reduce the need for leaves in the first place. In our book of business, we have actually seen a 33% reduction in absenteeism and a 20% improvement in life satisfaction among employees who utilize their company’s behavioral health offerings. And regardless of employees’ intermittent usage, the data shows that these benefits are invaluable, now more than ever.

The fact is that managing intermittent leave will likely always be a source of “friction.” It is challenging for all parties involved, but there are steps that can be taken to make it a little less cumbersome and confusing and maybe even prevent the need for leave altogether. By maintaining clear policies, providing regular training to team members, understanding the courses of actions that can be taken in different situations, considering each case on its own merits, and implementing wellbeing benefits, organizations will undoubtedly be in a better position to manage intermittent leaves successfully.

Matt Morris is the Vice President of ComPsych/FMLASource, a leading absence administration provider. He is an employment lawyer with more than 25 years of legal experience.