Summary
People tend to think of the Family and Medical Leave Act (FMLA) as only being about continuous leave - taking the leave all at one time. In fact, under the FMLA, an employee is entitled to non-continuous (intermittent) time off if certain requirements are met. This allows an employee to take time off in the following circumstances:
- When incapacitated for a short period of time, OR
- Temporarily unable to perform an essential function of the job even though not totally incapacitated, OR
- To go to medically necessary medical appointments, tests and treatments OR
- To do other activities which are medically necessary.
It is not required that an employee go to get treatment when absent from work.
An employer can request that the time be taken in a manner that is least disruptive to the job. An employer may even transfer an employee for the same purpose.
An employer can require the same certification from a healthcare provider about time off taken intermittently as it requires for blocks of time off under the FMLA. Notice requirements are also permitted.
The FMLA provides increments in which time off will be counted.
It is advisable for employees to keep their own record of time off under the FMLA. The record should include:
- Date
- Actual amount of time off (note beginning and ending time)
- Time calculated under the employer's appropriate rules (e.g. 45 minutes equals 1 hour)
- Reason for taking the time off
- Relevant facts (such as written notice given on X date, or conversation with Y on X date etc)
For information about each of these subjects, see:
- When Must An Employer Grant Intermittent Leave Or A Reduced Work Schedule
- Managing Intermittent Leaves.
- Intermittent Leave Transfers
- Accounting For Intermittent Leave
- Notice Of Intermittent Leave And Forms
- Alternatives To Intermittent Leave
- "Medically Necessary" And Appointment Scheduling
NOTE: If you have a continuing health condition and want to call in to say that you will not be coming to work today and you want the time off to be counted as FMLA time, it is advisable to state that the reason is because of the condition and that the time off should be counted as FMLA leave. Unless a statement like this is made, an employer is permitted to ask the reason for the time off which can get into specifics that you otherwise don't have to get into.
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When Must An Employer Grant Intermittent Leave Or A Reduced Work Schedule
An employer must grant intermittent leave or a reduced work schedule when the FMLA eligibility requirements are satisfied (see the document in "To Learn More") and:
- Leave is medically necessary AND
- The medical necessity is best accommodated through intermittent leave or reduced schedule.
Proof of medical necessity must be provided by a certification from a healthcare provider. An employer may request clarification or authentication about a certification. An employer may also request a second or third opinion. If the employee will be off work for a period of time, the employer may request a Fitness For Duty Certification before allowing the employee to return to work. For more information about each of these subjects, see the documents in "To Learn More."
To Learn More
More Information
Definition Of Healthcare Provider Under The FMLA Fitness For Duty Certification Under The FMLA Recertification Under The FMLA Healthcare Provider Certification Under The FMLA The Eligibility Requirements To Qualify For FMLA LeaveRelated Articles
Work Issues Family & Medical Leave Act (FMLA)Managing Intermittent Leaves
An employer may also consider transferring an employee during a period of leave. (See the next section).
Intermittent Leave Transfers
- Transfers can be allowed for planned medical treatment.
- Transfers are not allowed for chronic treatments which are occasional or unpredictable.
Equivalent job duties are not required. The employer must pay regular pay and provide the same benefits. An employer may not transfer an employee in order to discourage the employee from taking leave or otherwise cause a hardship on the employee. NOTE: Transfers must also comply with any collective bargaining agreement and the provisions of the Americans With Disabilities Act (ADA). For example, the ADA may say an employee must be accommodated within the position unless it is a hardship for the employer. (For more information about the ADA, see the document in "To Learn More").
More InformationTo Learn More
Accounting For Intermittent Leave
As a general matter, intermittent leave is counted on an hourly basis.
An employer may use a different amount of time as long as it is no greater than the shortest period of time that the employer uses to account for other forms of leave - so long as that time is not great than one hour.
There is an exception to the one hour maximum for situations in which it is physically impossible to start a shift mid-way. The classic example is a flight attendant. In this case, the entire period can be called a FMLA leave.
An employer may have policies that account for leave in different increments at different points in time.
Notice Of Intermittent Leave And Forms
- For planned treatment or appointments, the employer may require advance notice.
- Maximum notice permitted is 30 days.
- If the employee gives less notice than required, the employer can delay leave unless there are unusual circumstances. For example, if an employer requires notice such as two weeks, but an employee only gives one week notice, the employer can technically require the employee to delay taking leave for one week unless there are unusual circumstances.
- An employer cannot delay leave even if notice is less than required if the employee can explain why longer notice is not practical. For instance, if the employer has a 30 day notice requirement. The employee gives appropriate notice for three rounds of chemotherapy which are scheduled one week apart. After the second session, the doctor says another round of chemotherapy is needed a week after the third session.
- For unforeseeable events, the employer may use the same notice requirements as in its attendance policy.
Employers cannot be discriminatory when dealing with employees who do not follow notice procedures. More Information Related Articles
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Alternatives To Intermittent Leave
- Using personal time off
- Using vacation time
- Using sick time
"Medically Necessary" And Appointment Scheduling
Once a doctor signs off on a treatment schedule, there is a presumption that whatever the schedule it, the schedule is medically necessary. NOTE: When giving an employer notice about an upcoming leave, if the request includes appointments that are disruptive to the work, the employer can request certification from the doctor that the scheduling is necessary. For example, if appointments are scheduled mid-day, during the week, an employer can ask for a less disruptive schedule unless the doctor certifies that this timing is necessary.