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How to stop midshift intermittent FMLA leave abuse


There’s nothing quite like trying to manage intermittent FMLA leave for employees who must see to loved ones’ care during working hours. It’s an administrative head­­ache when an employee announces she’ll be taking intermittent FMLA leave that day.

It’s even more difficult if the employee comes to work, only to spend all her time on the phone, supposedly dealing with the serious health condition covered by FMLA intermittent leave. Even if the calls happen on breaks or lunch, the employee may return late to her workstation, creating problems.

The good news is that under most circumstances, you probably can discipline her for those long breaks and tardy returns.

Recent case: Sheletha worked in the fraud department at a bank where an employee always had to be on duty. That meant breaks and lunch periods were carefully scheduled and timed so someone was always on hand.

When her mother became ill, Sheletha assumed much of her care and she was approved for intermittent FMLA leave. Sheletha regularly used intermittent leave in day-long blocks.

But she also frequently returned late from her breaks, causing scheduling problems in the de­­partment. When challenged, she alleged that she was late because she was on the phone with her mother—something she claimed should be counted as intermittent FMLA leave. The bank terminated her for repeatedly coming back late from breaks.

She sued, alleging interference with her right to FMLA leave.

The bank argued that the phone calls didn’t qualify as FMLA leave even if she did speak with her mother during the calls. The court agreed and dismissed the lawsuit. (Grant v. JPMorgan Chase, No. 11-500, SD TX, 2012)