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 reflect revisions to the Seattle paid sick and safe time administrative rules, effective July 1, 2018.
Updated to incorporate amendments to San Francisco's paid sick leave rules, effective June 7, 2018.
Updated to reflect final regulations implementing the forthcoming paid sick and safe leave law.
Updated to reflect the Pregnancy Accommodations Act, effective May 17, 2018.
Updated to include information on a case regarding the Minneapolis Sick and Safe Time Ordinance.
Updated to reflect the forthcoming state paid sick leave law.
Updated to incorporate safe time amendments to New York City's paid sick leave law, effective May 5, 2018.
Updated to reflect a US Department of Labor opinion letter concerning rest breaks taken as intermittent leave.
Updated to reflect leave-related pregnancy accommodation requirements, effective April 1, 2018.
Updated to reflect the forthcoming Austin paid sick leave law.
HR guidance on the legal and administrative challenges in managing intermittent FMLA leave.