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:
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.
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:
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.