INTERMITTENT LEAVE UNDER THE FAMILY MEDICAL LEAVE ACT

The Family Medical Leave Act ("FMLA") provides eligible employees with up to 12 weeks of unpaid and job protected leave.[1] During the course of the FMLA leave, employees are entitled to maintain group health benefits in the same condition as if the applicable employee were not on leave. Note that where applicable, employees will still be required to pay co-premiums and/or co-payments under their employer's group health benefits plan just as though the pertinent employee was not on leave.

Many employers and employees mistakenly believe that FMLA must be taken in a single interval or in several large chunks of time; however, this is incorrect. The FMLA permits employees to take intermittent leave under certain conditions. This intermittent leave may be taken in the shortest normal time increments permitted by his/her employer under regular pay policies, not to exceed one hour. Put differently, if an employer provides for pay increments of less than one hour (e.g., one-half hour), an employee may take leave in such increments. Otherwise, an employee may take leave in one hour increments.

Under the FMLA, eligible employees are entitled to take intermittent leave, sometimes referred to as leave on a reduced schedule, if medically necessary to care for the employee's own serious health condition. Further, employers also must grant intermittent FMLA leave to employees who need to care for a spouse, child, or parent with a serious health condition.[2] Employees who wish to take intermittent FMLA leave after the birth of a child or after adopting or fostering a child, assuming the child does not suffer from a serious health condition, can only do so if the employer agrees to the intermittent leave requested. In other words, intermittent leave following the birth, adoption or fostering of a healthy child is discretionary on the part of an employer. If the new child is unhealthy and suffers from a serious health condition, FMLA is allowed as under any other circumstances separate and apart from the special provisions related to intermittent leave when welcoming a new child into a family.

This means that employees can, with appropriate notices discussed below, take sporadic leave needed as required to treat their own serious medical condition or a serious medical condition of a spouse, child or parent. This issue causes many logistical issues for employers and requires constant attention and documentation. Nonetheless, the heavily employee-friendly provisions of the FMLA permit such result and require strict compliance.

If an employee plans to take intermittent leave, he/she must make reasonable efforts to schedule his/her leave without disrupting his/her employer's operations. Employees must give at least 30 days' notice for planned intermittent leave if the need for leave was foreseeable at least that far in advance. If leave is not foreseeable more than 30 days' in advance or is unforeseeable all together, employees must provide notice of intent to take leave as soon as practicable.

After an employee is prepared to return to work from intermittent FMLA leave, or ready to return to a full schedule from a reduced schedule, the employee must be returned to his or her original job or an equivalent position immediately. Employers can request employees to provide notice related to their anticipated return, assuming an employee is not taking the full 12 weeks allowed on an annualized basis.

Employers cannot interfere with, restrain or deny an employee the ability to exercise his or her rights under the FMLA. Further, employers cannot use the fact that an employee took FMLA leave as a negative factor when making employment decisions (e.g., hiring, promoting or disciplinary actions). Employers must be very sensitive to leave requests. However, they should not hesitate to invoke their right to request an employee to provide a medical certification that intermittent leave is medical necessary, as permitted under the FMLA.

As with many employment related statutes, each situation is different and requires a correct action plan based on the applicable facts and conditions. It is advisable to contact counsel before taking any adverse action connected with an employee on FMLA leave or that may be qualified to take FMLA leave.

[1] An employee is eligible for FMLA leave if he/she: (i) works for a covered employer; (ii) has worked for that employer for at least 12 months; (iii) has worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave; and (iv) works at a location where at least 50 employees are employed at the location or within 75 miles of the location.   The following employers are "covered employers" under the FMLA: (i) public agencies, including state and federal employers, and local schools; and (ii) private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year.

[2] The FMLA does not provide for leave to care for a sick parent in-law. Further, certain additional leave rights also apply to employees who need to care for a covered military service member that require special attention beyond the scope of this post.

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