United States: Intermittent Leave Under The FMLA – The Basics

Congress adopted the Family and Medical Leave Act of 1993 ("FMLA") to provide job security for employees who must miss work due to their own serious health condition, the birth of their children, to care for family members suffering from a serious health condition or for reasons related to their family members' military service. One of the most vexing issues for employers trying to comply with the FMLA is "intermittent" or "reduced-schedule" leave.

Employee's Entitlement to Intermittent or Reduced-Schedule Leave The FMLA guarantees qualified employees up to 12 weeks of unpaid leave within a one-

year period. When "medically necessary," leave under the FMLA must be granted on a part-time or intermittent basis. Such intermittent or reduced-schedule leave is FMLA leave that an employee takes in blocks of time that are less than the full amount of the employee's total entitlement. One court has described intermittent leave as "a series of absences, separated by days during which the employee is at work, but all of which are taken for the same medical reason, subject to the same notice, and taken during the same twelve month period." Davis v. Mich. Bell Tel. Co., 543 F.3d 345, 350–51 (6th Cir. 2008). Intermittent leave might take the form of missing a few half-days in a week or missing an hour or two at a time to take a chronically sick child to medical appointments or to stay at home with the child when a medical condition prevents the child from attending school. Reduced-schedule leave might also include, for example, an employee working part-time for 24 weeks to be able to receive cancer treatments and rest from the accompanying fatigue. Either way, the leave taken by the employee intermittently or as a result of a reduced schedule is deducted from the employee's 12-week entitlement.

Like other FMLA leave for which an eligible employee is qualified, employer consent is not required for intermittent or reduced-schedule leave that is medically necessary due to pregnancy, a serious health condition, or the serious illness or injury of a covered service member. However, intermittent leave requests for the placement for adoption or foster care of a child are subject to the employer's approval. In addition, an employer typically must also consent to intermittent leave that an employee requests in order to provide child care after the birth of a child or the placement of an adopted child. However, if the mother develops complications from childbirth, or the infant is premature and suffers from health problems, the "serious health condition" qualifier would likely require the employer to grant intermittent leave. If both spouses work for the same employer, both spouses may only take up to 12 weeks of combined leave in connection with the care of a newborn or newly adopted child.

Employer consent also is not required when intermittent or reduced-schedule leave is necessary due to a qualifying exigency, which generally applies to family members of uniformed service members. Qualifying exigencies may include such events as short-notice deployment, military events and activities, child care and school activities, making financial and legal arrangements, counseling, the death of a service member, and some other post-deployment activities. 29 C.F.R. § 825.126.

Regulations specifically prohibit employers from refusing to assign overtime that would otherwise be available to employees who have taken FMLA leave. 29 C.F.R. § 825.215(c)(1). Therefore, employers should only decline to offer overtime to employees who are on intermittent FMLA leave if the employee's medical certification expressly states that he or she is precluded from working overtime.

Further, if an employee is on intermittent leave and is absent on a company holiday, the holiday will not count against the employee's leave entitlement unless the employee was scheduled to work on that holiday. 29 C.F.R. § 825.200(h). Similarly, if the employer's business is closed for a week or more, the days the employer's operations were inactive do not count against an employee's leave entitlement.

Employer Responsibilities

Employers should develop clear written policies that detail both parties' responsibilities with regard to FMLA leave, including intermittent leave. Being able to point to an easy-to-read policy that employees have acknowledged in writing may help employers manage employee expectations and reduce confusion and misunderstanding.

Employers should also engage employees who request time off for a health condition or to care for a family member in a process to determine whether the employee is seeking leave for a reason covered under the FMLA. Most often, employees will not use magic words such as "FMLA" and "serious health condition" in their requests for leave. Employers should be attentive to determine whether the request seems like a facially plausible request for FMLA leave. See Sahadi v. Per-Se Techs., Inc., 280 F. Supp. 2d 689 (E.D. Mich. 2003) (employee who told her employer she would like to take vacation days as needed to be with her husband after his hospitalization gave facially sufficient notice of need for intermittent FMLA leave).

Employers should ask the employee questions designed to determine whether the employee's request is one that would be FMLA-qualifying. Don't ignore an employee's seemingly simple or routine requests for time off. For example, if an employee says, "My daughter is not feeling well and I need a little time to take her to the doctor," the employer should inquire into whether the employee's child's health condition is ongoing or requires more than just one visit to a medical provider. Non-serious health conditions—usually in the form of headaches or minor colds—even of an employee's child do not ordinarily qualify an employee for FMLA leave. But at least one federal court of appeals has found that even the flu could be a qualifying serious health condition, at least where it incapacitates the employee for three or more days. Miller v. AT&T Corp., 250 F.3d 820 (4th Cir. 2001).

If an employee must commence leave on short notice before an employer has had an opportunity to fully evaluate the leave request, the employer should promptly respond to the employee and explain how it is treating the leave request preliminarily. If the request is for foreseeable leave, the employer should communicate with the employee about how it will consider the request pending the receipt of a medical certification and further investigation.

Employers have a right to request a medical certification and should exercise that right. Upon receiving certification, an employer that identifies a need for a second opinion may seek one. When seeking a second opinion, the employer would be wise to provide the medical professional from whom it seeks a second opinion with all of the relevant information about the employee's condition. See, e.g., Humility of Mary Health Partners v. Teamsters Local Union No. 377, 517 F. App'x 301 (6th Cir. 2013) (upholding employee's reinstatement where employer terminated employee after obtaining medical opinions concluding she was not eligible for FMLA leave but failed to inform the doctors who issued the opinions about the employee's medical history).

Further, employers may and should request recertification of the continued need for FMLA leave at certain intervals. For non-military injury-related health conditions, if the original certification does not specify a minimum period of time, the employer may consider the original certification expired after 30 days and then request another certification. However, if the original certification does provide a minimum time period, the employer may only request a recertification once that stated time period expires and only if the employee requests leave beyond that stated time period.

In addition, employers should be mindful of the fact that the FMLA does not exist in a vacuum and that they are responsible for identifying all laws that apply to an employee's request for medical leave. Federal FMLA only requires employers to grant leave to employees who have worked at least 1,250 hours during the preceding 12 months and work at a location that is within 75 miles of 50 or more workers employed by the same employer. However, state and local laws may have lower eligibility thresholds and may require that some portion of the leave be paid. In addition, state disability laws may have specific requirements with respect to pregnancy and other conditions that must be taken into consideration when addressing requests for FMLA leave. Finally, when employees require additional leave beyond the 12 weeks that the FMLA provides, employers must evaluate whether continued unpaid leave is required as a reasonable accommodation under the Americans with Disabilities Act.

Last, employers should train all levels of management on how to identify intermittent – and all – FMLA leave requests. Human resources professionals should not be the employer's only staff educated on FMLA rights and responsibilities. Employers should ensure that anyone with supervisory authority knows how to recognize an FMLA leave request so they can direct the request to a trained human resources professional.

Employee Responsibilities

At a minimum, employees must provide clear information about their need for intermittent or reduced-schedule leave and obtain the required medical certification. Employees should also provide as much advance notice of their need for intermittent time off under the FMLA as possible (the regulations state that employees must give notice "as soon as practicable," see 29 C.F.R. § 825.302). The burden is on the employee to prove that the notice he or she provided is adequate under the circumstances.

Often, because of the nature of conditions that trigger the need for intermittent leave, it isn't possible for an employee to work out a fixed reduced schedule with the employer. For example, if an employee's child suffers from flare-ups of a chronic condition such as Crohn's disease, the employee may be forced to use intermittent leave sporadically and unpredictably. Even so, employees should communicate with their supervisors in writing each time they must take intermittent leave without advance notice and explain the reason. Employees should also be prepared to provide a doctor's note or other simple proof that the abrupt absence is a qualifying event.

Moreover, if an employer has a call-in policy, employees must follow it. Approval of FMLA leave does not relieve employees of their duty to abide by call-in policies when they are able to do so.

Finally, employees must not abuse FMLA leave by taking it for purposes not covered under the law. A federal court in Massachusetts found that where much of an employee's time away for treatment and support was also spent visiting healthy family and friends, the employer rightfully terminated the employee for abuse of leave. Tayag v. Lahey Clinic Hosp., Inc., 677 F. Supp. 2d 446 (D. Mass. 2010). In another case, an employer terminated its employee after the employer's private investigator reported that the employee, who was on intermittent leave to take his mother to medical appointments, had not left his house on one of his leave days. Subsequently, even though the employee was able to demonstrate that he had in fact taken his mother to the doctor, the court upheld the termination, finding that the termination was because of an honest, good-faith belief that the employee was abusing FMLA and not because the employer was retaliating against or interfering with the employee's FMLA leave. Tillman v. Ohio Bell Tel. Co., No. 11-3857, 2013 U.S. App. LEXIS 20723 (6th Cir. Oct. 8, 2013).

Conclusion

The FMLA can be a quagmire for employers that aren't diligent. Intermittent and reduced schedule leave requests can be particularly difficult, raising unique questions and issues requiring employers to be particularly savvy. Employers should take intermittent leave requests very seriously and should never allow their annoyance over such requests and the inconvenience that intermittent leave may cause to cloud their judgment or impair their ability to assess the situation rationally and comply with the law.

While employers should show appropriate sensitivity to the hardships of employees and their families, they should also request medical certification and investigate the purported need for leave.

Ignoring FMLA intermittent leave requests or failing to treat them with due care can result in litigation that may prove more costly to the employer than the employee's FMLA leave. When in doubt, contact counsel about these issues.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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