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 and unplanned medical treatment or medical issues and for military exigencies (also referred to as qualifying exigencies).
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 gave enough information to show that intermittent leave is medically necessary (not just convenient for the employee), specified the likelihood of unpredictable episodes of incapacity or flare-ups and documented the expected frequency and duration of such episodes or flare-ups.
Once a certification form is submitted, employers have many obligations when it comes to designating, calculating and tracking intermittent FMLA leave. Common employer challenges include identifying and appropriately tracking leave, scheduling leave and dealing with a reduced workforce. Maintaining accurate records of FMLA use and absences is important so that suspicious patterns of absences can be detected.
Trends: Various jurisdictions are passing paid sick leave laws that create tracking nightmares for employers who are already tracking FMLA leave. Under the FMLA, an employer must account for the use of FMLA leave using an increment no greater than the shortest period of time that the employer uses to account for the use of other forms of employee leave, as long as the time increment is not greater than one hour and the employee's FMLA leave entitlement is not reduced by more than the amount of leave actually taken. Employers need to check their local paid sick leave law, if applicable, to ensure they are allowing employees to take paid sick leave in the proper increment of time.
Author: Melissa S. Burdorf, JD, Legal Editor
Updated to include the Maryland Healthy Working Families Act, effective February 11, 2018.
Updated to reflect amendments to the Seattle Paid Sick and Safe Time Ordinance, effective January 14, 2018.
Updated to reflect the New Parent Leave Act, amendments to the California temporary disability and paid family leave benefits law, and applicability of San Francisco's Paid Parental Leave Ordinance to smaller employers, effective January 1, 2018.
Updated to include the state paid family leave benefits law, effective January 1, 2018.
Updated to reflect applicability of the St. Paul Earned Sick and Safe Time Ordinance to smaller employers, effective January 1, 2018.
Updated to reflect applicability of the earned sick time law to smaller employers, effective January 1, 2018.
Updated to include amendments to the Oregon Sick Time Law, effective January 1, 2018.
Updated to reflect state paid sick leave final rules, effective October 3, 2017.
Updated to include the forthcoming state paid sick leave law.
HR guidance on the legal and administrative challenges in managing intermittent FMLA leave.