Getting Back to Basics: Intermittent FMLA Leave

In concept, the FMLA is simple.  In practice, however, administering FMLA leave, particularly on an intermittent basis can quickly become complicated, and many employers struggle trying to track and manage intermittent leaves.  This post addresses some of the intermittent leave-related issues employers may face and offers best practices for ensuring compliance with the law. 

Entitlement to Intermittent Leave

Under the FMLA, covered employers generally must provide eligible employees up to 12 workweeks of unpaid family and medical leave in a 12-month period for:

1. the birth of a child and to bond with the newborn child within one year of birth;
2. the placement with the employee of a child for adoption or foster care and to bond with the newly placed child within one year of placement;
3. a serious health condition that makes the employee unable to perform the functions of his or her job;
4. to care for the employee’s spouse, son, daughter, or parent who has a serious health condition; and
5. any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty.

Eligible employees may also take up to 26 weeks of FMLA Leave in a 12-month period to care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the servicemember.

Except with respect to birth and bonding-related leave, an employee can take leave in a continuous block or he or she can be take it intermittently or on a reduced leave schedule.  In the case of birth and bonding leave, however, an employer may, but is not required to, permit an employee to take leave on an intermittent basis or reduced leave schedule.

“Intermittent leave” is leave taken in separate blocks of time due to a single qualifying reason.  A “reduced leave schedule” is a schedule that reduces an employee’s usual number of working hours per workweek or hours per workday.  For the sake of convenience, both intermittent leave and reduced leave schedule will be referred to in this post as “intermittent leave.”  Examples of intermittent leave include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of months, such as for chemotherapy, or even leave taken by a pregnant employee for prenatal appointments or severe morning sickness.  

Employers deduct intermittent leave on a pro-rata basis from the employee’s 12-week entitlement under the FMLA.  There is no limit on the size of a leave increment, but an employer must account for the leave using an increment that is no greater than the shortest period of time that the employer uses to account for the use of other forms of leave, provided that (i) it is not greater than one hour; and (ii) the employer does not reduce the employee’s FMLA leave by more than the amount of leave the employee actually takes.  For example, an employee who works a regular 40 hour workweek is entitled to the equivalent of 480 leave hours.  An employee might take two hours off on a Friday each week for three weeks for a medical appointment for a total of 6 hours of leave.  After completing the intermittent leave, the employee will have 474 hours or 11.85 weeks of leave remaining. 

Exempt employees add another wrinkle to employer calculations as some may regularly work more than 40 hours in a workweek.  In order to guard against a scenario where an employee can claim entitlement to 12 weeks of leave that exceeds a 480 hour conversion, employers should include in either their offer letters, employee policies or other clear written communication that an exempt employee’s regular workweek is 40 hours. 

Employers may not interfere with an employee’s FMLA rights.  Employer interference is not limited to denial of leave.  It also includes penalizing an employee who uses FMLA leave or discouraging them from using such leave. 

Employee Obligations

Regardless of whether the employee is seeking intermittent or continuous leave under the FMLA, employees must satisfy certain obligations before qualifying for such leave.

Employees must provide 30 days’ advance notice to their employer when the need for leave is foreseeable.  To the extent possible, employees who take leave for planned medical treatment have an obligation to make a reasonable effort to schedule the treatment so it does not unnecessarily disrupt the employer’s operations.  When the need is not foreseeable, employees must provide as much advance notice of their need for leave “as soon as practicable.”  Given that sometimes the nature of the need for intermittent leave is unpredictable, it may not be possible for an employee to provide 30 days’ notice of the need for intermittent leave.  It is, however, the employee’s burden to prove that he or she provided adequate notice under the circumstances. 

Further, if the employer has established customary and usual practices for requesting leave or call-in policies for employees on intermittent leave, employees must follow the employer’s policies.  Approval of FMLA leave does not relieve employees of their duty to follow employer policies when they are able to do so.  Again, the unpredictable nature of intermittent FMLA leave can often complicate things, including but not limited to, an employer’s customary call-in procedures. 

Employees must also provide enough information to alert the employer about their need for intermittent leave and obtain the required or necessary medical certification (or other proof) that the abrupt absence is a qualifying event.  Even if the need for intermittent leave was unpredictable, employees should be prepared to communicate with their supervisors or management in writing each time they need to take intermittent leave without advance notice and provide the reason.  Employers should keep in mind that FMLA requests may be verbal or written and an employee is not required to mention “FMLA” or “intermittent leave.”  However, employees do need to provide enough information to signal leave may be covered by the FMLA.  Employers and their managers will need to understand when employee requests may need to be flagged and/or funneled to HR as potentially covered by the FMLA.

Best Practices for Management of Intermittent Leave

As employers formulate or reassess their approach to managing intermittent – and all – FMLA leave requests, they should consider the following:

1. Have Clear Written Policies and Practices.  Employers should develop clear written policies and practices for employees and managers to use before and during the leave period to help ensure compliance and easier administration.  These policies should detail the employer’s policy, as well as its standard operating procedures related to requests and tracking.  The ability to point to an easy-to-read policy, which employees have acknowledged in writing may help employers manage employee expectations and reduce confusion or misunderstanding regarding available leave.
2. Educate, Engage, and Communicate.  Regular communications with employees is critical to managing intermittent leave and employee expectations.  Beginning an open dialogue can help employees better understand how the FMLA works and what is required of them.  For example, issues can develop when employees do not notify supervisors or managers about time off until after the fact. Employers should also engage employees who request time off to care for a family member or for the employee’s own health condition to assess whether the employee is seeking leave for a reason covered under FMLA and if intermittent leave is needed. 
   
   For example, if an employee requests time off to take the employee’s daughter to the doctor, the employer should inquire whether the child’s health condition may require more than one visit to a provider (e.g. the child suffers from a flare up of a chronic condition, which may qualify for intermittent leave vs. minor cold, headache, or other non-serious condition, which generally do not qualify).  However, if a non-serious health condition later results in the incapacitation of the employee, the employee may then become eligible for FMLA leave.
3. Be Organized.  Administering FMLA leave can be simplified when one individual handles it for organizational purposes.  Employers are encouraged to provide training and support to this point person to ensure he or she is equipped to manage day-to-day issues.  Further, as a company or organization grows, managing leave can become more cumbersome and/or time consuming.  Employers may consider a variety of software tools, spreadsheets, online calendars, or paper forms to stay organized and track leave or they may consider outsourcing their leave management responsibilities to a third-party provider. 
4. Train Managers.  All levels of management should receive training regarding how to identify intermittent (or any other) FMLA leave requests.  Employers are discouraged from only educating HR professionals and/or their point person for organizational purposes.  Anyone with supervisory or managerial authority should know how to recognize FMLA leave requests and when to escalate the request to a trained HR professional.
5. Treat Employees Taking FMLA Leave the Same as Those Who Take Non-FMLA Leave.  Employers must treat employees who utilize FMLA leave the same way they treat employees who utilize non-FMLA leaves.  For example, if an employer does not deny a “perfect attendance” bonus to employees who use vacation leave, the employer may not deny the bonus to an employee who used an FMLA qualifying reason.  Employers should review their bonus and/or commission plans and related policies to ensure that employees taking leave for FMLA reasons are treated the same as employees who take leave for non-FMLA reasons.
6. Account for Other State Leave Laws.  States like California, Connecticut, New York and New Jersey, among many others, have their own family and medical leave laws, some of which, unlike the FMLA, permit employees to use intermittent leave for birth or bonding reasons.  Employers must pay close attention to nuances like this when administering a request for FMLA leave, including to ensure that the FMLA and state leave requests can run concurrently. 
7. Consider COVID-19’s Continued Impact.  While the FFCRA may expire at the end of March 2021, and even though COVID-19 by itself does not qualify as a serious health condition, employers should understand that the analysis does not end there.  Many serious health conditions may emanate from an employee’s contraction of COVID-19 and employers should, therefore, still be prepared to respond to COVID-19 FMLA-related requests accordingly. 
8. Remember the ADA.  Finally, employers may also need to evaluate whether unpaid leave is required as a reasonable accommodation where an employee remains disabled after his or her FMLA leave expires. 

Conclusion

The FMLA can be confusing to both employers and employees.  Intermittent leave requests in particular can be difficult, raising complex questions and issues that require employers to be both savvy and diligent in the administration and management of leave.  Following the best practices above can go a long way to ensuring FMLA compliance, but employers are encouraged to discuss any concerns or doubts regarding intermittent – or any – FMLA leave with counsel.

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