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 incorporate amendments to the City of San Diego Earned Sick Leave and Minimum Wage Ordinance, effective September 2, 2016.
Updated to reflect the forthcoming Employee Sick Leave Act.
Updated policy and guidance to highlight that the notice should generally be attached to the handbook or other benefits resource; updated guidance to reflect EEOC guidance on employer-provided leaves of absence as a reasonable accommodation under the ADA.
Updated to incorporate pregnancy accommodation requirements, effective August 10, 2016.
Updated to reflect the forthcoming Minneapolis Sick and Safe Time Ordinance.
Updated to reflect the addition of military exigencies as a qualifying reason for taking leave under the Connecticut Family and Medical Leave Act, effective June 7, 2016.
Revised to incorporate New York City pregnancy accommodation enforcement guidance, issued May 6, 2016.
Revised to incorporate pregnancy accommodation requirements, effective May 10, 2016.
Updated to include information on individual liability under the federal FMLA in a federal court ruling covering Vermont employers.
Updated to include information on individual liability under the FMLA in a federal court ruling covering Connecticut, New York and Vermont employers.
HR guidance on the legal and administrative challenges in managing intermittent FMLA leave.