The Family and Medical Leave Act (FMLA) grants eligible employees 12 weeks of unpaid, job-protected leave in a 12-month period. But what happens if an employee wants to take FMLA leave intermittently over an extended period of time?
Although intermittent leave is allowed under FMLA, it can present an additional set of challenges when it comes to determining eligibility and maintaining compliance — and your legal obligations may vary depending on the reason for the leave request.
Here’s everything you need to know about intermittent FMLA leave, and how your HR department can take steps to streamline your leave management system.
What Is Intermittent FMLA Leave?
The Family and Medical Leave Act is a federal law that applies to employees in all 50 states. Some states have more comprehensive leave laws, such as Paid Family Leave in California, but FMLA rules still apply alongside any state leave entitlements. Under FMLA, employees can take leave for any of the following qualifying reasons:
- The birth of a child
- The adoption of a child
- The placement of a child in foster care
- To assist with a family member’s serious medical condition
- To get medical treatment for their own serious health condition
- To care for an active duty service member or veteran (military caregiver leave)
FMLA-qualifying leave is unpaid leave, but the employee is entitled to keep their health insurance and return to the same job at the end of the leave period.
Here’s a straightforward example: an employee plans to take a full 12 weeks of leave to care for a newly-placed foster child. The employee gives you plenty of advance notice, uses 12 workweeks of leave all at once, and then returns to the same position.
But what happens if your employee has a temporary incapacity or chronic condition that only requires occasional treatment? They’re still entitled to the same amount of leave time, but they may need to take leave in small increments.
This can make it harder for your human resources team to process their leave request and meet your obligations as a covered employer.
How Does Intermittent FMLA Leave Work?
FMLA intermittent leave follows the same guidelines as standard FMLA leave, with one major difference: how it’s calculated. According to the Department of Labor’s Fact Sheet #28, employees can take FMLA leave using “the smallest increment of time the employer allows for the use of other forms of leave,” such as sick leave.
In other words, if an employer calculates vacation leave in 15-minute increments, then that’s the unit they should use to calculate intermittent FMLA leave.
Here’s how this might work in practice: an employee has a flare-up of a chronic health condition and needs to schedule a doctor’s appointment during work hours. They use up 2 hours of FMLA leave, which counts toward their total 12-week allotment.
If the employee requests time off for a second medical appointment for the same health condition, this would also count toward that total, even if they’re several calendar days apart. An employer can’t deny an employee’s leave request for medically necessary care, but they can ask for a medical certification from their healthcare provider.
For parental leave, it’s a different story: the employee’s FMLA leave needs to be taken all at once, unless the employer approves an intermittent FMLA leave schedule.
Intermittent FMLA Best Practices
When an employee uses FMLA leave intermittently, it can have a bigger impact on an employer’s operations due to the increased unpredictability. Here are three ways that your human resources department can navigate intermittent FMLA requests:
Reduced Work Schedule
It may turn out that the best way to accommodate an employee’s needs is to offer them a reduced work schedule instead of intermittent leave.
For example, if an employee needs to take care of a sick family member on the same two days every week, they could work a reduced leave schedule of 24 hours per week. This has the benefit of giving the employee the time off they need, while still allowing both parties to plan ahead and maintain a consistent work schedule.
A reduced work schedule could also allow the employee to access FMLA leave over a longer period of time. Although they’re still limited to 12 workweeks of leave in a single 12-month period, having a 3-day workweek would mean they could take two days of leave each week for a 36-week period.
Only days that an employee would ordinarily have worked should be applied to their FMLA leave entitlement. If any increments of leave fall on a holiday or on a day the company is closed, those days shouldn’t be counted toward FMLA.
Transfer to a Similar Position
Another possibility is to transfer the employee to a different position that better fits their leave request — as long as it offers the same pay and benefits as their current position, and they can return to work in the original role once the leave period is over.
For example, an employee could be transferred to a different shift or a different location to reduce the amount of time they need to take off to attend an appointment. This could address the impact of intermittent leave on the employer’s operations.
However, it’s important that the transfer isn’t done in a way that appears to penalize the employee. If it increases their commute or makes their job harder, it could violate their rights under FMLA and open the employer up to legal liability.
Identify FMLA Retroactively
Finally, it’s important for employers to be proactive in identifying situations that could fall under FMLA — and if necessary, designate them after the fact.
In many cases, employees won’t specifically ask for FMLA leave or use technical terms like “qualifying exigency” in their leave request.
An employee might take ordinary sick leave to attend a doctor’s appointment, only to be admitted to the hospital for a serious medical issue. Or, they might take vacation leave and develop a chronic condition that delays their return to work.
Properly classifying a situation as FMLA leave protects both employers and employees. Employees are protected from being penalized for their absence, while employers can keep track of leave to ensure employees don’t take more than they’re entitled to.
If an employee is abusing FMLA leave or performing badly while on intermittent leave, they can be fired, as long as it isn’t in retaliation for requesting leave.
Use Pulpstream to Handle Intermittent FMLA Requests
Employees are entitled to 12 weeks of unpaid leave per year for parental leave, medical treatments, and other qualifying reasons — but they don’t have to take leave all at once. Because of the amount of paperwork required to qualify for FMLA, employees may not bother to request FMLA leave when they take time off in smaller increments.
HR departments need to be proactive in identifying FMLA leave and requesting the right FMLA forms in order to meet their legal obligations. By digitizing the leave of absence process, employers can track intermittent leave in one place and make it easier for employees to upload medical certifications and recertifications.
With Pulpstream’s no-code interface, you don’t need any coding experience to digitize your LoA workflows. You can use Pulpstream to track intermittent hours, manage ADA leaves, send certified mail, set up automated reminders, and more.
Contact us today to request a demo and see how Pulpstream can help!
