Sticky Situations: Issues with Intermittent Leave

Jun. 18, 2018

Intermittent leave creates headaches for employers and HR professionals alike.  While it is a protected form of FMLA leave, providing accommodations for employees on intermittent FMLA leave proves tricky.  It is important for employers to understand what intermittent leave is and how to handle requests for it to avoid running afoul not only of the Family and Medical Leave Act, but also of the Fair Labor Standards Act.


What is Intermittent Leave?

Intermittent leave is defined as “FMLA leave taken in separate blocks of time due to a single qualifying reason.” Intermittent leave can result because of either the employee’s own serious health condition, an employee’s need for FMLA leave to care for a spouse, parent, son, or daughter with a serious health condition, or to care for a covered service member with a serious injury or illness. 

Regardless of the reason for the intermittent leave, if an FMLA eligible employee completes and submits the necessary certifications, an employer’s obligation to provide the employee with up to 12 weeks of leave in a 12-month period (or 26 months of leave for care of a covered service member) is triggered.   If the certification calls for intermittent leave, it will be important for the employer and the employee to communicate clearly regarding the requirements for the intermittent leave (i.e. gone every third Thursday for chemotherapy), the duration (for 6 months), and any additional anticipated needs (may need to be absent due to side effects of chemotherapy).

Communication will be critical to ensure all parties on the same page.  The individual communicating with the employee regarding his/her leave should be knowledgeable about the ins and outs of FMLA and the various laws that can be intertwined with FMLA leave.


What Counts as Intermittent Leave?

Intermittent leave can come in various forms.  It can be created by a need for periodic treatment rather continuous treatment.  According to the regulations, leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of months can qualify as intermittent FMLA leave.  For example, if you have a pregnant employee who suffers from severe morning sickness, her doctor may provide a note excusing her from work until the morning sickness subsides.  Another example may be an employee who is undergoing chemotherapy.  They may be able to return to work for several days or weeks at a time and then need to be absent for several days or hours for treatment.  The time they are absent from work would be considered intermittent FMLA leave.

In some circumstances, an employee may need to have frequent rest breaks or bathroom breaks to accommodate for a medical condition.  Depending upon the certification and details, this may also trigger intermittent leave. 


How Do I Calculate Intermittent Leave?

According to CFR 825.05, “leave can be taken in increments no greater than the shortest period of time that the employer uses to account for use of other forms of leave provided that it is not greater than one hour and provided further that an employee’s FMLA leave entitlement may not be reduced by more than the amount of leave actually taken.”   In other words, if you deduct PTO or sick leave in increments of one minute, then you would deduct leave designated as intermittent FMLA leave in increments of one minute. 

In the example above regarding the pregnant employee, if she was scheduled to begin her shift at 8 am, but comes in at 11 am after her morning sickness has subsided, she would have 3 hours of intermittent FMLA leave deducted from her 12-week FMLA entitlement, provided the appropriate FMLA leave certifications have been obtained.  In this instance, the HR professional would calculate the number of hours of FMLA the individual would be entitled to, 480 hours, and then subtract the number of hours the employee is absent from work for her FMLA certified illness accordingly.  If the employee comes in at 11 am every day for a week, she would have 15 hours deducted from her 480-hour FMLA leave entitlement. 

Proper record-keeping will be critical to ensuring an employer properly calculates the end of the FMLA leave entitlement.  If the employee’s morning sickness persists throughout the term of her pregnancy and she comes in at 11 am throughout the term of her pregnancy, she would exhaust her FMLA leave entitlement within 32 weeks.  The employee would not be entitled to FMLA leave when the child is born since she would have already exhausted her FMLA leave entitlement.

 

Fair Labor Standards Act implications

Whether or not the intermittent leave is compensable will depend upon several factors. 

In an Opinion Letter released by the U.S. Department of Labor in April of this year, the Acting Administrator of the Wage and Hour Division responded to a question from an employer regarding the compensability of a non-exempt employee’s 15-minute rest breaks, which were certified by a health care provider as required every hour due to the employee’s serious health condition, and thus covered under the FMLA.  While an employer may be required to accommodate the rest breaks, the ultimate question as to whether the breaks were compensable came down to whether the breaks were primarily for the benefit of the employee or the employer.  (Armour & Co. v. Wantock)  Since the breaks were being taken predominantly for the benefit of the employee due to a medical condition, they will not be required to compensate the employee for the additional break times. (Spiteri v. AT&T Holdings, Inc.)

If an employer has an employee who has to take breaks similar to the one noted above, then it will likely not be compensable.  Other instances of leave where an individual is out for a portion of a day or an entire day would be subject to any PTO policies an employer has in place.  Employers should be sure to note this on the designation form when they notify the employee that their leave is being designated as FMLA leave. 


Takeaways

When employers are faced with intermittent leave or other FMLA accommodations issues, employers should be sure to engage in the interactive process with the employee and contact an experienced employment law attorney.  Discussing the issues with an attorney before making any personnel decisions will help employers be equipped with the knowledge necessary to navigate the sticky situations surrounding intermittent leave. 

Written By:
Bill Egan

Bill Egan is a Seasoned Employment Law Attorney backed by over 33 years of proven, veteran experience. He specializes in navigating businesses through conflict resolution in the workplace.

Rachell Henning is a second-year student at Mitchell Hamline School of Law's innovative Hybrid program. Rachell is an Avisen Fellow who enjoys spending time with her husband and two young daughters when she is not working or studying.

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