When must employees schedule FMLA intermittent leave?
The federal Family and Medical Leave Act (FMLA) has frustrated employers since its enactment more than 30 years ago. One particularly tricky part for employers to manage is intermittent leave. To help curb some of this frustration, the FMLA offers some reprieve. One such opportunity for reprieve, however, requires employees to work with employers when scheduling the leave.
What is intermittent leave?
Intermittent leave is when an employee takes time off in smaller periods of time, which could be counted in increments as small as minutes (depending on an employer’s leave policy).
Employees are entitled to take FMLA leave on an intermittent basis when it’s:
- Medically necessary,
- During the adoption or foster placement process, or
- For a family member’s military qualifying exigency.
Whether the leave is medically necessary due to a serious health condition and needs to be taken on an intermittent basis should be noted on a certification if one is requested. In some situations, an employee (or family member) needs intermittent leave for treatment on a regular, foreseeable basis.
Employee leave vs. business disruption
A provision in the FMLA can help employers manage employee FMLA leave while keeping the business running as smoothly as possible. The provision requires an employee who needs leave intermittently (or on a reduced schedule) for planned (foreseeable) medical treatment to make a reasonable effort to schedule the treatment (perhaps before or after work) so it doesn’t disrupt company operations.
Employees are also required to advise their employers, upon request, of the reasons why the intermittent schedule is necessary and of the schedule for treatment, if applicable. Here is where it gets interesting, and generally requires working together:
“The employee and employer must attempt to work out a schedule for such leave that meets the employee’s needs without unduly disrupting the employer’s operations, subject to the approval of the health care provider.” [29 CFR 825.302(f)]
Start the conversation
If the employee doesn’t start this discussion, the employer may, and it’s likely beneficial to do so early in the leave, or even before the leave begins. That way, employers can get an established pattern of the leave more locked down.
If the leave can be scheduled outside of the employee’s normal work schedule with the doctor’s agreement, the employee could be required to follow such a schedule. While treatment might not be feasible outside of an employee’s work schedule, perhaps leaving a bit early or coming in a bit late would be less disruptive than taking the leave in the middle of a shift.
In any case, knowing when the employee will be out makes getting the work done easier.
Unfortunately, the rules don’t go into detail regarding what the employer options are if an employee does not play along in this cooperative discussion. In one court case, however, an employer was granted summary judgment (i.e., won the case before it went to trial) when an employee made no effort to reschedule a medical appointment when he learned that the employer would be short-staffed without him, and misled the employer about whether he would be at work on day of appointment. The employee was terminated. Kaylor v. Fannin Regional Hosp., Inc., 946 F.Supp. 988 (N.D. Ga 1996).
Another interesting piece of the regulation is that if an employee needs intermittent leave for planned medical treatment, the employer may transfer the employee to an alternate position that better accommodates recurring periods of leave.
Please note that this flexibility doesn’t apply to unforeseeable intermittent FMLA leave, such as when a medical emergency arises. Unpredictable intermittent leave is often the biggest challenge for FMLA administrators.
Key to remember: Employers may require employees to work with them to schedule intermittent leave for foreseeable, planned medical treatment.
