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Intermittent Leave Under the FMLA: What Employers Need to Know

Intermittent leave under the Family and Medical Leave Act (FMLA) can help employers retain experienced staff and reduce the need for extended coverage or new training. At the same time, intermittent leave is difficult for employers to track, and it lacks the predictability of continuous leave. This article explains the FMLA and provides some practical guidelines for managing intermittent leave.

Background of the FMLA

The Family and Medical Leave Act (FMLA) is a federal law that entitles eligible employees to unpaid, job-protected leave for certain family and medical reasons. The FMLA entitles employees to take leave for the birth or adoption of a child. In passing the FMLA, Congress found that the number of single- and two-parent households in which the single parent or both parents worked was increasing, and that it was important for the development of children and the family unit that parents be able to participate in early childrearing and the care of family members who have serious health conditions. Congress passed the FMLA “to balance the demands of the workplace with the needs of families,” and to relieve working parents who were forced “to choose between job security and parenting.”

The FMLA also entitles employees to take leave for serious health conditions that prevent them from working for temporary periods, and for the care of a child, spouse, or parent who has a serious health condition.

What does the FMLA provide?

For eligible employees, FMLA provides up to 12 weeks of leave in a 12-month period for any of the following qualifying reasons:

• The birth of a child and to care for the newborn child within one year of birth,
• The placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement,
• To care for the employee’s spouse, child, or parent who has a serious health condition,
• A serious health condition that makes the employee unable to perform the functions of his or her job, or
• Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on covered active duty or call to covered active duty status.

In addition, an eligible employee can take up to 26 weeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness when the employee is the spouse, son, daughter, parent, or next of kin of the servicemember.

The FMLA requires employers to continue the employee’s group health benefits under the same terms and conditions as if the employee had not taken leave.

Requirements for Employers and Employees

A private employer must provide FMLA leave if it has 50 or more employees for at least 20 weeks in the current or preceding calendar year. Public agencies and schools must also provide FMLA leave, regardless of size.

To be eligible for FMLA leave, the employee must have worked for the employer for at least 12 months and logged at least 1,250 hours during the previous 12 months. In addition, an employee is not eligible for FMLA leave if the worksite where the employee works has fewer than 50 employees and the total number of the employer’s employees within 75 miles of that worksite is also fewer than 50.

Intermittent Leave

Intermittent leave means leave taken in non-continuous blocks. Here’s an example. Suppose an eligible employee suffers from migraines that prevent her from working, and her doctor provides medical certification stating that she needs to be absent intermittently. If the migraines come on suddenly and unpredictably, the employee may take intermittent leave. For example, she may take one day of leave in week one, work all five days normally in week two, take leave halfway through the day on Thursday of week three, and take leave on Monday and Friday in week four. In that case, the employee has taken 3.5 days of FMLA leave across four weeks, but she has taken the leave in scattered, non-continuous pieces. That’s intermittent leave. It’s different than, for example, a surgery that requires the employee to take leave for six straight weeks to recover.

When the leave is for a serious health condition, an eligible employee may take it intermittently when medically necessary. If an employer retaliates against an employee for taking FMLA leave, or interferes with an employee’s exercise of her rights under the FMLA, the employer could become liable in a lawsuit.

Managing Intermittent Leave

There are several things you can do to make intermittent leave easier to manage at your organization and to avoid liability under the FMLA.

1. Create a clear and thorough leave policy.
2. Publish a simple cheat-sheet for managers to determine eligibility.
3. Make the notification process as specific as possible. For example, require that the employee notify her manager in writing, by a specific method (email or text), rather than permitting oral notifications.
4. Use a standard Leave Request Form that should be completed for each leave.
5. Train managers on the policy, how to communicate expectations for any employee taking FMLA leave, and about what constitutes interference and retaliation.
6. When suspecting misuse, conduct a fair and thorough investigation before taking disciplinary action or pursuing recertification.

Thoughtful management of intermittent leave helps employers limit business disruptions while reducing exposure to FMLA claims.

This is a brief overview and summary of the FMLA and intermittent leave. It does not address all situations. Young Moore and Henderson lawyers can help you manage FMLA issues, including intermittent leave, and defend you in lawsuits asserting claims of retaliation or interference. For assistance, please contact Ash Giri or Dawn Dillon.

About Young Moore and Henderson, P.A.

Young Moore and Henderson, P.A. is a civil law firm in Raleigh, North Carolina representing clients in a variety of litigation and transactional matters. Firm attorneys have extensive experience in the following areas: Administrative Law; Appellate Practice; Business Law & Litigation; Condemnation; Construction Law; Education Law; Employment Law & Litigation; Estate Planning & Estate Litigation; Health Care; Insurance Law; Licensing Boards and Commissions; Medical Malpractice Defense; Nursing Home/Long Term Care Litigation; Product Liability; Professional Liability; Real Estate; Retail and Premises Liability; State & Local Tax; Tax-Exempt Organizations and Charitable Entities; Trucking and Transportation; and Workers’ Compensation.