FMLA Intermittent Leave

FMLA intermittent leave is when an eligible employee takes FMLA leave in blocks of time when a single injury or illness has occurred. New FMLA regulations went into effect in 2009 and again in 2013 that addressed employers and how they were to comply with FMLA's legal requirements. The changes also addressed ways to minimize the impact that unscheduled FMLA absences had on the workforce.

When an employee takes reduced leave, it limits the number of hours the employee can work during the work week and work day. This can mean working a part-time schedule versus a full-time schedule.

When is Intermittent FMLA Available to Employees?

When an employee is faced with a serious health condition that makes them unable to do their job, an employer must grant intermittent FMLA leave. A health condition is deemed to be serious when the employee is incapacitated for more than three consecutive days. It also includes two visits to a medical provider done within 30 days of the incapacitated period.

Employees who are in a caregiver position can request intermittent leave if they are responsible for a spouse, daughter, son, or parent. The care can be for either physical or psychological care.

When employees take FMLA intermittent leave, the employer can transfer them to a temporary "available alternative position" under the following conditions:

  • The intermittent FMLA leave is foreseeable.
  • The leave based on the medical treatment or recovery planned for the employee.
  • The leave is for a family member or veteran.
  • The employee has the qualifications for the alternate position.
  • The alternate position is better suited to accommodate the employee's need for recurring leave time.

When Can Voluntary Intermittent FMLA Leave Be Allowed by Employers?

For employees who are considering foreseeable FMLA intermittent leave, a 30-day notice is required. If a 30-day notice is not possible, the employee must provide as much notice as they possibly can. In cases where the need to take leave is unforeseeable, the employee must inform the company as soon as possible.

FMLA regulations suggest that the employee contact the employer at least one to two business days before the need for the leave. This should be done with an oral communication between the employee an employer.

What Rules Apply for Taking FMLA Intermittent Leave?

For employees and employers, there are certain rules and options in place when intermittent leave is requested.

  • Employees will most likely have to follow the call-in procedures to report an absence.
  • Regulations allow employers to contact the employee's doctor for validation of information.
  • An employer can request that the employee provide new medical certification. This would take place when the new FMLA year begins.
  • Employers may also request that the employee provide a second or third medical opinion.
  • Employers may request recertification for chronic conditions only every 30 days and only if it's regarding the employee's absence unless there is a doubt about the information the employee stated for the leave. For example, the employee is asking for FMLA leave to have Mondays and Fridays off.
  • Employers are to count the actual time off for an employee's FMLA intermittent leave and not count estimates for the time needed for leave provided by either the employee or their physician.
  • When an employee requests FMLA, an employer cannot tell an employee that FMLA is not available until the employee has exhausted their sick, vacation, or paid time off.

How Much Time is Available for an Intermittent FMLA Leave?

When an intermittent FMLA leave is taken, the actual time taken is charged against an employee's available leave time. In other words, intermittent leave does not affect the amount of leave time an employee has available to them.

Employers account for the FMLA leave in increments that are generally no greater than the shortest period used for any other form of leave if the increment is no more than one hour.

In a 12-month period, employees may take 26 weeks of FMLA leave to care for a family member who became ill or injured while on active duty for the military. The leave time is unpaid.

For employees with family members who are active in the Reserves or National Guard, 12 weeks of FMLA leave is allowed.

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