The Essential Guide to Family & Medical Leave

chapter 9 | managing an employee’s leave | 201
who sees that an employee is gaming the system—by taking only Fridays
off, for example—may be willing to place some limits on the certification.
• Require employees to adhere to a schedule for foreseeable intermittent leave.
If an employee needs intermittent leave only for scheduled treatment
(not for a condition that might worsen suddenly), you can ask the
employee to stick to the schedule. Of course, the employee’s doctor
might have to cancel every once in a while, but if the employee seems
to be taking a lot of unscheduled time off, you should ask the employee
what’s going on—and seek recertification.
• Require employees to talk to a manager for every absence. One of the
toughest challenges that arises from intermittent leave is properly
recording and designating the time off. It’s especially difficult if an
employee takes a lot of unscheduled time off in small increments. This
is why it’s a good idea to require employees using intermittent leave to
call in and let a manager know why they’re taking time off; the manager
can then record the leave as FMLA leave or pass the message on to the
person responsible for managing FMLA in your organization. If the
employee is unable to call in ahead of time for health reasons, make sure
the employee provides notice as soon as possible.
Some companies have adopted fairly aggressive policies to combat abuse of
sick leave by employees. When these policies are applied to employees who
are using FMLA leave, however, they can create legal problems. If these rules
conflict with the FMLA or have the effect of discouraging employees from
taking FMLA leave, they might violate the law. Here are a few examples:
• Requiring employees to call in 30 minutes before their shift starts
violates the FMLA, because the FMLA requires only as much notice as
is practicable under the circumstances. Mora v. Chem-Tronics, Inc., 16
F.Supp.2d 1192 (S.D. Cal. 1998).
• Requiring employees to call in within three days of an absence or be fired
for job abandonment does not violate the FMLA, because the employee
was able to call in during that time and should have done so. Lewis v.
Holsum of Fort Wayne, Inc., 278 F.3d 706 (7th Cir. 2002).
• Requiring an employee on sick leave to call a “sick control hotline”
whenever the employee leaves home does not violate the FMLA, because