The Family and Medical Leave Act (FMLA) and Intermittent Leave

An eligible employee is entitled to leave up to a total of 12 weeks “Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. section 2612(a)(1)(D).

“FMLA leave may be taken ”intermittently or on a reduced leave schedule“ under certain circumstances. Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason.” 29 C.F.R. section 825.202(a); 29 U.S.C. section 2612(b)(1).

The Code of Federal Regulations provides this example:

“(1) Intermittent leave may be taken for a serious health condition of a parent, son, or daughter, for the employee’s own serious health condition, or a serious injury or illness of a covered servicemember which requires treatment by a health care provider periodically, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks. Examples of intermittent leave would include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of six months, such as for chemotherapy. A pregnant employee may take leave intermittently for prenatal examinations or for her own condition, such as for periods of severe morning sickness. An example of an employee taking leave on a reduced leave schedule is an employee who is recovering from a serious health condition and is not strong enough to work a full-time schedule.” 29 C.F.R. section 825.202(b)(1).

This same section also states that intermittent leave “shall not result in a reduction in the total amount of leave to which the employee is entitled under subsection (a) of this section beyond the amount of leave actually taken.” 29 C.F.R. section 825.205(b)(1); 29 U.S.C. section 2612(b)(1).

What the section above means is that the employee is entitled to 12 weeks of leave [per subsection (a)] and can only be charged with FMLA leave for the exact amount of time the employee is out on leave. For example, if the employee’s physician certifies the employee needs intermittent leave from January 01 to February 28, and the employee takes leave for 6 hours on January 14th, 8 hours on January 23rd, 3 hours on February 03 and 8 hours on February 20, the employer can only subtract 25 hours [6 + 8 + 3 + 8 = 25] from the employee’s 12-week leave entitlement. The employer cannot subtract the 59 total days from January 01 to February 28.

The FMLA specifically states that certification is sufficient if it provides:

  • (1) the date the serious health condition began;
  • (2) the probable duration of the condition [which could be lifelong or permanent];
  • (3) the required medical facts [note this does NOT require a diagnosis];
  • (4) a statement the employee is unable to perform the functions of the position of the employee [due to the serious medical condition]; and
  • (5) “a statement of the medical necessity for the intermittent leave or leave on a reduced leave schedule, and the expected duration of the intermittent leave or reduced leave schedule.” 29 U.S.C. section 2612(b)(6).

The “expected duration of the intermittent leave” is the beginning and end dates between which leave might be needed. Using the same example I used before, the “expected duration” is January 01 through February 28. During the duration of the intermittent leave [during the period from January 01 through February 28], the employee can take off from work AS NEEDED due to his or her serious medical condition. The employee must give notice of the leave as soon as reasonably possible.

Finally, the employer can require recertification no more often than every 30 days, UNLESS the original certification is for more than 30 days. 29 C.F.R. section 825.308. So, in my example, the original certification was for the 59 days between January 01 and February 28. Therefore, the employer cannot ask for certification again until after February 28, unless the employee asks for a change in certification or there is legitimate reason to doubt the need for leave exists. The original certification and the recertifications can be at the employee’s expense.

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