Key Takeaways

  • Intermittent FMLA allows eligible employees to take leave in separate blocks for qualifying medical or family reasons.
  • Employers may require certification, track usage precisely, and sometimes transfer employees to alternative roles for operational ease.
  • Proper documentation, notice, and recertification are crucial to managing intermittent FMLA effectively.
  • Employers must balance compliance with FMLA rights and business needs while preventing abuse or miscommunication.
  • Employees are protected from retaliation or interference when taking approved intermittent FMLA leave.

What Is 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.

Understanding Intermittent vs. Continuous Leave

The Family and Medical Leave Act (FMLA) recognizes two main types of leave: intermittent and continuous. Continuous leave involves taking a single block of time off, such as six weeks for surgery recovery. In contrast, intermittent FMLA leave allows employees to take time off in smaller, non-consecutive periods when a medical condition requires periodic care or treatment.

Examples include attending recurring medical appointments, managing chronic illnesses like asthma or diabetes, or caring for a family member with ongoing treatment needs.Employers must treat both types of leave equally in terms of job protection and benefits continuity, but intermittent leave often requires careful scheduling, tracking, and communication to minimize disruption.

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.

Certification and Medical Documentation Requirements

Employers are entitled to request medical certification when an employee applies for intermittent FMLA leave. This certification must confirm the medical necessity for intermittent or reduced-schedule leave and provide the expected frequency and duration. The U.S. Department of Labor requires that:

  • Certification forms be completed by a health care provider.
  • Employers allow at least 15 calendar days for the employee to return the completed form.
  • Recertification may be requested every 30 days if the leave relates to an ongoing condition or if circumstances change.

Employers cannot demand excessive information or require employees to disclose their full diagnosis. However, they can verify authenticity or seek clarification through HR (not the direct supervisor).

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.

Managing Scheduling and Employee Notice Requirements

Scheduling intermittent FMLA can be challenging. Employees should make reasonable efforts to schedule planned medical treatments to avoid disrupting the employer’s operations. For foreseeable medical treatment, a 30-day advance notice is required; if not possible, notice should be given as soon as practicable.

Employers may require employees to follow standard call-in procedures for each absence. When the pattern of absences suggests potential misuse—such as always missing Mondays or Fridays—employers can request updated certification or verification of medical need.

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.

Common Employer Challenges and Compliance Risks

Intermittent leave can be difficult for HR departments to manage because it often leads to unpredictable scheduling gaps and administrative complexities. Common issues include:

  • Tracking time accurately: Employers must record leave in increments as small as the shortest increment used for other absences (no larger than one hour).
  • Communication lapses: Failing to properly designate FMLA time can lead to compliance errors.
  • Potential abuse: Some employees may misuse intermittent leave for convenience rather than legitimate medical reasons.
  • Coverage problems: Employers must plan ahead to maintain productivity and fairness among team members.

To minimize risk, HR professionals should maintain clear documentation, update leave policies, and ensure managers understand FMLA boundaries to prevent interference or retaliation claims.

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.

Employee Rights and Employer Protections

Under the FMLA, employees using intermittent leave retain the same rights and protections as those taking continuous leave. Employers must:

  • Continue group health insurance under the same terms as if the employee were working.
  • Restore the employee to their same or an equivalent position once leave ends.
  • Prohibit any form of retaliation or discrimination for using approved intermittent FMLA leave.

At the same time, employers may protect their operations by enforcing attendance policies uniformly, requiring timely updates, and ensuring accurate medical documentation. Training HR and supervisors on proper FMLA procedures reduces disputes and ensures both employee rights and employer interests are respected.

Frequently Asked Questions

  1. What qualifies as intermittent FMLA leave?
    Intermittent FMLA applies when an employee needs time off in separate periods due to a chronic medical condition or to care for a family member with ongoing treatment.
  2. Can employers deny intermittent FMLA requests?
    No, employers cannot deny a legitimate intermittent leave request that meets FMLA criteria, but they may require certification and proper notice.
  3. How can employers manage abuse of intermittent leave?
    Employers can request recertification, monitor attendance, and ensure each absence aligns with the certified medical condition.
  4. Does intermittent FMLA leave have to be paid?
    Generally, FMLA leave is unpaid, but employees may use accrued paid leave (like vacation or PTO) concurrently, depending on company policy.
  5. Can employees be transferred to another position during intermittent leave?
    Yes. If the employee qualifies and the transfer better accommodates the recurring leave schedule, the employer may offer a temporary alternative role with equivalent pay and benefits.

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