Employer’s Guide to FMLA Intermittent Leave

The Family and Medical Leave Act (FMLA) offers critical protections for employees, but it also presents unique challenges for employers, especially when dealing with intermittent leave. Understanding these complexities can help employers comply with the law while safeguarding their business interests.

What is FMLA?

FMLA is a federal law that provides eligible employees with up to 12 weeks of unpaid leave for specific family and medical reasons, which include:

1. The birth and care of the newborn child of an employee.
2. Placement with the employee of a child for adoption or foster care.
3. To care for an immediate family member (i.e., spouse, child, or parent) with a serious health condition.
4. To take medical leave when the employee is unable to work because of a serious health condition.

Which Employers Are Required to Provide FMLA for Employees?

FMLA applies to private-sector employers who have 50 or more employees in 20 or more workweeks in the current or preceding calendar year. This also includes public agencies and public and private elementary and secondary schools, regardless of the number of employees.

What Employees Are Qualified for FMLA?

To be eligible for FMLA leave, employees must work for a covered employer and:

1. Have worked for the employer for at least 12 months.
2. Have at least 1,250 hours of service in the 12 months preceding the leave.
3. Work at a location where the employer has at least 50 employees within 75 miles.

What is Intermittent Leave?

Intermittent leave refers to FMLA leave taken in separate blocks of time due to a single qualifying reason. This could be for medical treatments, flare-ups of a chronic condition, or other urgent needs. Unlike continuous leave, intermittent leave can be highly variable, making it more challenging to manage.

How Does FMLA Intermittent Leave Work?

FMLA allows eligible employees to take up to 12 weeks of unpaid leave per year. When this leave is intermittent, it can be taken in small increments, such as a few hours or days at a time. Employers must track these increments accurately to ensure compliance.

Examples of Intermittent FMLA Leave

1. Birth and Bonding: Parents may use FMLA leave when their child is born and to bond with their child during the 12-month period beginning on the date of birth.
   • Example 1: Dolores’ spouse gives birth to a child in March. Dolores takes ten weeks of FMLA leave beginning in June to bond with the newborn while traveling to visit family.
   • Example 2: Ian takes 12 weeks of FMLA leave for bonding after a surrogate gives birth to his child.
2. Placement of a Child for Adoption or Foster Care: Employees may use FMLA leave when a child is first placed with them for adoption or foster care and to bond with their newly placed child.
   • Example 1: Jun takes FMLA leave to travel to the child’s birth country, consult with attorneys, and appear in court. After the adoption, he takes additional available FMLA leave to bond with the child.
3. Serious Health Condition of the Employee: A serious health condition is one that makes the employee unable to perform their job functions.
   • Example 1: Rajinder takes FMLA leave for migraine headaches which prevent him from working.
   • Example 2: Trinh takes FMLA leave for an ongoing chronic illness which makes her unable to work from time to time. Her condition requires periodic visits to a nurse under the direct supervision of a healthcare provider.
4. Care for a Family Member with a Serious Health Condition: Employees can take FMLA leave to care for a child, spouse, or parent who has a serious health condition.
   • Example 1: Hira’s son has a chronic illness that is a serious health condition. Hira takes FMLA leave once per month to transport her 14-year-old son to his specialist’s office for treatments, provide psychological comfort and reassurance, and keep him at home during recovery from the treatment’s effects.
   • Example 2: Shaye takes FMLA leave to care for her spouse during inpatient surgery for and recovery from gastric bypass.

What is the Difference Between FMLA and Intermittent Leave?

While FMLA provides up to 12 weeks of unpaid leave for qualifying reasons, intermittent leave is a way this leave can be utilized in smaller, non-consecutive increments. They are both part of the same law but are utilized differently.

Does Intermittent FMLA Reset Every Year?

Yes, the 12-week FMLA leave entitlement resets each year based on the employer’s specific FMLA leave year calendar. It’s crucial to have a well-defined policy to manage and communicate this reset effectively.

Can Intermittent FMLA Leave Be Scheduled?

Intermittent FMLA leave can sometimes be scheduled in advance, particularly for planned medical treatments. Employers can request that employees try to schedule their leave to minimize disruption to the workplace, but they must also be flexible to accommodate unplanned medical needs.

What Are the Notice Requirements for Intermittent FMLA?

Employees must provide 30 days’ advance notice when the need for leave is foreseeable, such as for scheduled surgery. If the leave is not foreseeable, employees should notify their employer as soon as practicable, generally within two business days of learning of the need for leave.

How Should Employers Document Intermittent FMLA Leave?

Accurate documentation is critical. Employers should maintain detailed records of all notices received from employees requesting FMLA leave, as well as records of the leave taken. This includes the dates, hours, and reasons for leave. Proper documentation helps avoid potential disputes and ensures compliance.

How Can Employers Verify the Need for Intermittent FMLA?

Employers have the right to request medical certification from a healthcare provider to verify the need for intermittent FMLA leave. Subsequent recertifications can also be requested under certain conditions. However, any information obtained must be handled confidentially.

Can You Discipline an Employee on Intermittent FMLA?

It’s important to tread carefully here. While employers can hold employees on intermittent FMLA to the same performance and conduct standards as other employees, disciplining them specifically for taking FMLA leave can lead to severe consequences.

What Are Examples of FMLA Retaliation?

Examples include:

1. Denying an employee a promotion due to their use of FMLA leave.
2. Reducing work hours as a punitive measure.
3. Creating a hostile work environment to coerce the employee to resign.

What Are Examples of FMLA Violations?

Violations can include:

1. Not granting eligible leave.
2. Failing to maintain health benefits during leave.
3. Discouraging employees from taking leave.

What are the Consequences of FMLA Non-Compliance?

Non-compliance with FMLA can lead to severe penalties, including fines and legal action. Employers who violate FMLA rules may be required to reinstate employees, provide back pay, or compensate for damages. It’s crucial to understand and adhere to all FMLA requirements to avoid these consequences.

For a comprehensive list of FAQs on FMLA, employers can consult the U.S. Department of Labor’s FMLA FAQ page.

By understanding and properly managing intermittent leave, employers can ensure they comply with FMLA regulations, thereby avoiding potential violations and fostering a fair workplace environment.

Sources:

• U.S. Department of Labor: Family and Medical Leave Act
• U.S. Department of Labor: Fact Sheet #28F – Qualifying Reasons for Leave under the FMLA