FMLA Intermittent Leave
The Family and Medical Leave Act (FMLA) is a federal law which provides job-protected family and medical leave for employees who meet certain requirements and work for employers who are subject to the law. Regulations implementing the FMLA have been issued on multiple occasions since the law was enacted in 1993. In January 2009 and again in February 2013, new FMLA regulations became effective, changing the way in which employers must act to comply with the legal requirements of the FMLA. Many states also have family and medical leave laws which may have more requirements than the federal law.
FMLA leave may be taken “intermittently” or on a “reduced leave schedule” under certain circumstances. Intermittent leave is FMLA leave taken in separate blocks of time for a single illness or injury. A reduced leave schedule reduces an employee’s usual number of working hours per workweek, or hours per workday. It is a change in the employee’s schedule for a period of time, normally from full-time to part-time. Generally, employees must show the medical necessity for intermittent leave or a reduced leave schedule.
When are employees entitled to intermittent FMLA leave?
Under the FMLA, eligible employees are entitled to take – and employers must grant – intermittent FMLA leave or leave on a reduced schedule when their own “serious health condition” renders him unable to do his job. In addition, employers also must grant intermittent FMLA leave to employees who needs to care for a spouse, son, daughter or parent with a serious health condition. Under the FMLA’s military leave provisions, employees also may use intermittent FMLA leave for qualifying exigencies and to care for a covered servicemember with a serious illness or injury. The care needed can encompass both physical and psychological care and can even include driving the family member to the doctor.
When may an employer voluntarily allow intermittent FMLA leave?
Employees who desire to take intermittent FMLA leave or a reduced leave schedule after the birth of a healthy child, or after adopting or fostering a healthy child, can do so only if the employer agrees to it. For example, an employee may want to work part-time after the birth of a child, and have her reduced schedule count as FMLA leave so that she will receive job protection and benefit continuation. Under the FMLA, an employer may allow the employee to do this, but it is not required to do so.
When an employee is considering taking intermittent FMLA leave, it is a good idea for the employers to remind her that if she intends to take intermittent FMLA leave she must make a reasonable effort (which is a greater effort than under previous regulations that simply required an attempt) to schedule her leave without disrupting the employer’s operations. Employees must give 30 days’ notice for intermittent FMLA leave that’s foreseeable that far in advance, or as much notice as practicable if it’s not possible to give 30 days’ notice. If the need for intermittent FMLA leave is unforeseeable, the employee must give notice as soon as practicable. It generally should be practicable for the employee to follow her employer’s usual and customary notice requirements for such leave. The FMLA’s regulations suggest that oral notification to the employer of the need for leave should be, at the latest, made within no less than 1 or 2 business days of the event giving rise to the need for leave.
HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including FMLA
Total amount of time available for family and medical leave under the FMLA
Taking FMLA leave intermittently or on a reduced schedule doesn’t affect the total amount of leave available to an employee (12 weeks in a 12-month period or up to 26 weeks in a single 12-month period for military caregiver leave) and is deducted as it is used. Only the time actually taken is charged against the employee’s available leave. An employer generally must account for the FMLA leave using an increment no greater than the shortest period of time that it uses to account for use of other forms of leave, provided that it is not greater than one hour.
Transferring employee to available alternative position to accommodate intermittent FMLA leave
An employer can transfer an employee to an “available alternative position” with equivalent pay and benefits to accommodate intermittent FMLA leave or a reduced leave schedule. This option, however, is available only when:
- the employee is taking foreseeable intermittent FMLA leave, based on the planned medical treatment or recovery of the employee, a covered family member or covered servicemember or veteran;
- the employee is qualified for the position; and
- the position better accommodates recurring periods of leave than the employee’s regular position.
The transfer is temporary, meaning limited to the time that intermittent FMLA leave or a reduced leave schedule is needed. Transfer may require compliance with an applicable collective bargaining agreement, federal law (such as the Americans with Disabilities Act (ADA) ), and state law. It also may include altering an existing job to better accommodate the employee’s need for intermittent or reduced schedule leave.
Return from intermittent FMLA leave or reduced work schedule
Once an employee who has been taking intermittent FMLA leave, or put on a reduced schedule, is ready to return to work, the employer must return him to his original job or an equivalent position immediately. The employer can require that he give some notice of his intent to return to work, but it can’t require that he take more FMLA leave than necessary just so you can find a job to put him in.
State family and medical leave laws
Some states have family and medical leave law. Employers should check it as well to see what requirements it imposes for intermittent family and medical leave.