Updated August 12, 2020:

Intermittent FMLA

Intermittent FMLA is leave taken pursuant to the Family Medical Leave Act (FMLA) for a single injury, taken in separate, non-consecutive time periods rather than a single span of time.

FMLA Intermittent Leave

The FMLA is an act of Congress, enacted in 1993 which provides protections for employees who must be away from work due to injury or illness of the employee or to give care to a family member during a period of injury or illness.

January 2009 and February 2013 saw the institution of new FMLA regulations which made important changes in how employers must administer the legalities of the FMLA.

Leave under the FMLA in certain situations may be intermittent or taken pursuant to a “reduced leave schedule” which shortens an employee’s normal daily or weekly work schedule. This leave is available for a defined period of time upon submission by the employee of documentation that intermittent or reduced leave schedule is medically required.

When Is Intermittent FMLA Leave Available?

Intermittent FMLA is available to employees when he or she has a serious health condition which prevents the employee from doing his or her job or for employees with family members requiring care for a serious health condition. Family members include spouse, child, and parent. The caregiving services can be either physical or emotional or both and include transportation services.

Employees may use any accrued sick or vacation leave benefits concurrently with FMLA leave. However, employers should never encourage employees to exhaust other leave prior to electing FMLA leave. Employees cannot be required to use accrued sick or vacation leave during his or her time off. Absences due to a workers' compensation claim or short–term disability may also be counted along with FMLA leave.

Employers may retroactively adjust leave and reclassify leave as FMLA leave in order to make sure an employee’s allotted FMLA leave is extinguished.

If an employee schedules treatment without first discussing this with the employer, the employer may legally require the employee to consult with the medical provider about other treatment schedules.

Can An Employee Be Fired During FMLA Leave?

Yes. Contrary to popular belief, the FMLA does not bestow some extraordinary job protections for employees. An employee who is out on FMLA leave can be disciplined or have his or her employment terminated so long as the employer can show that the discipline or termination was not related to the employee taking leave and that it would have happened absent the FMLA leave.

A key question asked by the Department of Labor in response to a terminated employee’s complaint would be why the employee was not terminated prior to taking leave. However, employers have been able to successfully defend their post leave termination decisions.

May An Employer Voluntarily Allow Intermittent FMLA Leave?

An employer may voluntarily allow intermittent leave whenever the employer agrees but is not always required to offer leave. New mother may work a reduced schedule for a time after giving birth or adopting a child if the employer consents.

An employee who desires to claim intermittent FMLA leave should make a reasonable attempt to accommodate the scheduling needs of employer so as to least hinder company operations. For doctor appointments or physical therapy, employers may inquire as to the possibility of these appointments being scheduled outside the employer’s normal working hours.

Unless the inability to work comes on suddenly, employees should request leave at least 30 days prior to the requested leave start date. In unforeseeable circumstance notice should be given with as much advance notice as possible, with the FMLA suggesting verbal notice no later than 1 or 2 business days after the event triggering the need for leave.

How Much Leave Is Available Under The FMLA?

Whether an employee takes FMLA leave intermittently or all at one time, the total amount of FMLA leave remains the same which is 12 weeks per 12-month timespan normally or for military caregivers, 26 weeks for one 12-month period.

Accounting for FMLA leave should be done in increments just as calculating other leave such as sick and vacation leave.

In addition to the FMLA, some states have labor laws that allow similar leave that may grant broader protections to employees.

Alternative Jobs to Accommodate Intermittent FMLA Leave

In order to facilitate the needs of the employer as a result of employees taking intermittent leave or a reduced leave schedule, the employee can be moved from his current position to another so long as:

  • The new position is equivalent in pay and benefits to the old position
  • The employee is qualified for the new position
  • The position better fits the employees leave needs

These transfers are limited in time to only as the FMLA leave is needed and other laws may apply to this transfer. Also, employers have to be careful to not create an appearance of punishing the employee for taking leave.

Return to Work

At the end of an employee’s FMLA leave, the employee is entitled to return to work in his original job or substantially equivalent alternative right away.

An employee can be required to give notice of the date he intends to return to work, but an employer may not require an employee to extend his leave while waiting for a position to be available.

Policies requiring employees to return to work with medical documentation of their need for FMLA leave are allowed. The employer’s human resources department should notify employees in writing of any such policies with instructions on what is required, and that failure to provide documentation may result in not applying the absence to FMLA leave.

Disadvantage of FMLA to Employers

The efficient operation of the employer’s business and loss of productivity by employees often absent from work are the chief complaints employers have regarding the FMLA. Further employees who have chronic health conditions may manipulate the rules to take FMLA in periods of less than an hour.

Department of Labor (DOL)Revised FMLA regulations

In response to more than 20,000 suggestions and concerns from employers and employee organizations, the U.S. Department of Labor in 2009 revised the FMLA regulations to require employees to adhere to employer’s policies regarding scheduling leave and calling in to report needed leave times. A helpful report template has been developed by Business Management Daily to assist employers in managing and monitoring FMLA leave and insuring good policies are in place.

Revised Definition of a “Serious Condition.”

To qualify as a “serious condition,” the law requires that it involve at least two medical treatment visits within 30 days and cause the employee to be unable to work for more than three consecutive days.

Certify and Schedule the Leave

The FMLA gives employers rights to information regarding the employee’s health condition, including:

  • Authority to require certification from a medical provider of the need to be absent from work which said certification may be required to be renewed at the beginning of each new annual FMLA period. A reasonable period to await certification is 15 calendar days from the request. If deficient, employer must explain to employee in writing as to how and allow a period of at least seven days to fix.
  • Authorization to directly contact the employee’s doctors, but only in regards to health information on the employee’s FMLA certification form.
  • The right to request a second opinion concerning employee’s condition from an independent health professional not employed by employer. If the second opinion differs from the first, the employer may request at its expense a third medical opinion which will be binding.
  • The employee’s contact with employer concerning FMLA leave may not be the employee’s immediate supervisor.

Employer's Effective Anti-Fraud Program for FMLA

How can an employer effectively prevent fraud and abuse of FMLA protections?

  • Obtain medical certifications and adopt and enforce a policy of refusing leave without certification and punishing absences from work without proper certification.
  • Carefully review the certification for completeness and appropriateness
  • After initial approval, especially with intermittent leave, conduct a plenary review of each subsequent request for leave to determine if leave is for the same condition or some new issue.
  • Look for suspicious patterns of absences, every Friday or Monday for example to get a long weekend.
  • Be diligent in classifying leave and keeping timely records so as to exhaust FMLA leave as soon as possible
  • Require specific information as to health conditions instead of conclusions or general statements such as “FMLA leave recommended.”
  • Monitor actual absences to insure the FMLA leave matches what was requested by the certification. If not, request a new certification.

Use the Calendar-year Method to Tame the FMLA Intermittent-leave Beast

Employers need to plan their operations to maximize efficiency and profits. Therefore, unexpected absences in the form of FMLA intermittent leave can greatly damage productivity and planning. To help alleviate this problem, use a calendar-year method to regulate FMLA leave. Require an employee with a chronic condition to take up to 12 weeks of leave by the end of the calendar year.

Oak Harbor Freight Lines, Inc. v. Antti

Employee Robert suffered from back problems. Upon requesting FMLA intermittent leave for treatment and inability to work during acute episodes, Robert submitted adequate medical certification of his need for leave. Upon monitoring his absences, Oak Harbor notice that almost 9 out of 10 absences during a six year timeframe fell next to a weekend of holiday. Employer requested proof of medical appointments on those days to which Robert refused and was disciplined.

Oak Harbor filed a court action for a declaratory judgment that requesting proof of the medical appointments were permissible under the FMLA. The court denied this request equating it to requiring a new certification for each absence. The FMLA has detailed rules for initial certification, second opinions, and recertification.

Once an initial certification is made, an employer may not require documentation for each absence thereafter.

Brown v. Eastern Maine Medical Center.

A chronically late employee was fired after many times of coming to work late and then refusing an offer of transfer to a different work shift. Employee blamed her inability to show up for work on time on a medical condition however, she had never been absent or late for work due to medical treatment or any flare-up of her medical condition which appeared to only hit her right before needing to be at work.

After being fired, she filed suit against her employer for failing to allow her tardies as FMLA intermittent leave. As you may imagine, the court ruled in favor of the employer stating that intermittent leave applies only to absences from work for medical treatment or due to incapacity from an acute attack of symptoms.

FMLA Intermittent Leave: Why Bosses Must Be Observant

Lackadaisical employers can easily be taken advantage of in the context of FMLA intermittent leave. Many employees seek to abuse the protections afforded by the FMLA and employers will have little recourse without keeping adequate records. Employers should remain involved in knowing what their employees are doing. This is easily accomplished by asking employees about their treatments or how their family member is feeling.

Employers can go a long way in preventing abuse of the FMLA leave by showing to employees that the employer takes the administration of FMLA leave seriously.

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