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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:

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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Family & Medical Leave Act (FMLA)

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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."

Managing Intermittent Leaves

An employer can attempt to require a schedule that least disrupts operations. For example, by requiring that the leave be taken at the start or the end of a work day.

An employer may also consider transferring an employee during a period of leave. (See the next section).

Intermittent Leave Transfers

Under the FMLA, an employer may transfer an employee temporarily to available alternate positions for which the employee is qualified if the position better accommodates recurring periods of leave than the employee's regular job.
  • Transfers can be allowed for planned medical treatment.
  • Transfers are not allowed for chronic treatments which are occasional or unpredictable. 
Transfers cannot change the type of job, or be to a distant location.

 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").

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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

An employer may require appropriate notice before granting intermittent leave under the FMLA.
  • 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.   
An employer may also require appropriate forms such as a Leave Request Form and require medical certification. (For information about certification, see the document in "To Learn More"). 

Employers cannot be discriminatory when dealing with employees who do not follow notice procedures.

Alternatives To Intermittent Leave

If intermittent leave is not feasible under the FMLA, alternatives to consider to get the time needed to attend to medical matters include:
  • Using personal time off
  • Using vacation time
  • Using sick time
When considering these alternatives, keep in mind that you must satisfy any procedural policies that accompany such time off. You remain entitled to unpaid FMLA leave if you fail to satisfy paid leave requirements.

"Medically Necessary" And Appointment Scheduling

Per the Department of Labor, the schedule of treatment is a medical determination.

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.