The Family and Medical Leave Act (FMLA) allows employees to take job-protected unpaid leave for certain specified reasons: To care for their own or a family member’s serious health condition; to care for a newborn or newly adopted child; or in connection with military family leave, in the event of a qualifying exigency or a serious injury or illness of a covered military member.
Since its inception, one of the most vexing aspects of FMLA administration for employers has been intermittent leave — those FMLA provisions that allow employees to take leave in separate blocks of time, or on a reduced schedule, due to a single qualifying reason. Intermittent/reduced schedule leave can be taken when medically necessary (either the employee’s own or a family member’s serious health condition) or in connection with military family leave. However, if the reason for the leave request is to care for a newborn or newly adopted child, intermittent/reduced schedule FMLA leave is allowed only if the employer consents to it. An example of this would be if the employer agrees to a part-time work schedule after a child’s birth/adoption.
For intermittent leave triggered by a serious health condition, circumstances must be such that the medical need can best be accommodated through an intermittent or reduced schedule. This includes situations where the seriously ill individual requires treatment by a health care provider periodically, rather than for one continuous period of time. Examples include leave taken on an occasional basis for medical appointments; leave taken for several days at a time over a period of months for chemotherapy; and leave taken by a pregnant employee for prenatal exams or for severe morning sickness. An employee recovering from a serious illness who is not yet strong enough to work full time would be an example of a situation appropriate for a reduced schedule FMLA leave.
Regulations state that employees needing leave on an intermittent or reduced schedule basis for planned medical treatment must make a reasonable effort to schedule the treatment so as not to disrupt the employer’s operations unduly. Employees must give 30-days notice for intermittent leave that is foreseeable at least that amount of time in advance, and as much notice as possible for leave that is not so foreseeable. Employers are to account for intermittent or reduced schedule leave using a time increment no greater than the shortest period of time it uses to account for other forms of leave, provided this is not greater than one hour and further provided that this increment cannot be greater than the amount of leave actually taken. However, if an employee on intermittent/reduced schedule FMLA leave cannot, due to the nature of the job, begin work mid-shift — such as an employee who works aboard a train or airplane during scheduled runs — the entire period that the employee is forced to be absent counts against the employee’s FMLA entitlement.
Also to ease the potential disruptive nature of intermittent FMLA leave, an employer can choose to transfer an employee taking intermittent/reduced schedule leave to a position with equivalent pay and benefits if the need for FMLA leave is foreseeable, the employee is qualified for the transferred-to position, and the position accommodates the recurring leave periods better than the employee’s ongoing position. Transfers made for this reason are to be temporary.
Employers that suspect the FMLA intermittent leave allowance is being abused have some tools in the regulations that they can use in an attempt to manage this. For example, employers can require a medical certification for any type of FMLA leave, and also a recertification, to make sure that the leave request is justified. The right to request recertification can be particularly helpful in the case of intermittent leave, which can span a long period of time. If the employer observes a pattern of intermittent leave taking that appears suspicious — such as scheduling the leave increments adjacent to weekends or holidays — requiring recertification can help to establish whether such a leave schedule is necessary.
Other provisions in the regulations can be used to minimize the disruptive potential of intermittent leave. For example, holding leave-requesting employees to the full extent of permitted notice requirements can aid in work schedule planning. Also, as noted above, an employer can transfer an employee temporarily to a position that would be less disrupted by the employee’s intermittent absences. Though this might not result in less leave being taken, it can help operations to run more smoothly.