Overview: Intermittent leave is one of the biggest headaches for employers administering leave under the Family and Medical Leave Act (FMLA), especially when it involves unplanned, repeated and sporadic leave requests.
When an employee seeks intermittent leave, he or she is requesting to take leave in separate blocks of time due to a single FMLA qualifying reason. Employees may take intermittent leave for both planned medical treatment and unanticipated medical treatment (or medical issues) and for military exigency leave (also referred to as qualifying exigency leave).
The certification requirements for intermittent leave are the same for other types of FMLA leave. However, employers should carefully review the certification to ensure the healthcare provider provided enough information to show that intermittent leave is medically necessary (not just convenient for the employee) and specified the likelihood of unpredictable episodes of incapacity or flare ups, and the expected frequency and duration of such episodes or flare ups.
Once a certification form is in, employers have many obligations when it comes to designating, calculating and tracking intermittent FMLA leave. Many common employer challenges include identifying and appropriately tracking leave, scheduling leave and dealing with a reduction in workforce. Maintaining accurate records of FMLA use and absences is important so that suspicious patterns of absences can be picked up.
Trends: The Department of Labor (DOL) has issued a Notice of Proposed Rulemaking on certain provisions of the FMLA, including a provision that deals with how employers calculate FMLA leave time. The DOL has proposed that employers may not require employees take more leave than they need to address the employee's underlying need for leave - meaning, employers must track FMLA leave in the shortest increments of leave (regardless of how it tracks other leaves). If the DOL's proposal is adopted, employees would be charged FMLA leave for the period in which they actually need the leave (e.g., one hour of FMLA leave for a one hour doctor visit) - thereby making the tracking of intermittent leave, when concurrent with other leaves, even more challenging.
Melissa S. Burdorf, J.D., Legal Editor
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HR guidance on the legal and administrative challenges in managing intermittent FMLA leave.
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