Managing Intermittent Leave Under the FMLA

This update is the seventh in a series of articles explaining requirements under the Family and Medical Leave Act (FMLA). Revised regulations, which took effect January 16, 2009, made sweeping changes to FMLA requirements and procedures.

The FMLA does not require employees to use their leave entitlement in a single, continuous 12-week block. When medically necessary, employees may take leave intermittently or on a reduced leave schedule to care for the serious health condition of the employee or the employee's covered family member. Leave may also be taken intermittently or on a reduced leave schedule in connection with military family leave, whether due to a qualifying exigency of a covered military member or a serious injury or illness of a covered service member. Finally, if the employer, in its sole discretion, consents, leave taken after the birth of a healthy child or placement of a healthy child for adoption or foster care may be taken intermittently or through a reduced work schedule.

Managing intermittent and reduced schedule leaves can be difficult for employers. When the Department of Labor began the process of revising the FMLA regulations, it received more public comments regarding employees' unscheduled use of intermittent leave than any other topic. Although the final regulations made only a few significant changes in response to these comments, they do offer employers some tools to help manage intermittent and reduced schedule leaves. This article discusses the requirements under the revised regulations that apply to employees and employers when employees take FMLA leave on an intermittent or reduced schedule basis.

Calling in "Sick" and Other New Notice Requirements

The revised regulations modify and clarify the employee notice requirements for FMLA leave. These revised requirements, which apply to both continuous and intermittent leaves, may be especially helpful to employers managing requests for intermittent or reduced schedule leave.

Requesting previously approved leave. When an employee seeks leave for the first time for an FMLA-qualifying reason, the employee need not expressly assert or even mention the FMLA. However, under the revised regulations, when an employee seeks FMLA leave due to a reason for which the employer has previously provided FMLA leave, the employee must now specifically make reference to the qualifying reason for leave or the need for FMLA leave.

Calling in sick. An employee calling in "sick" without providing more information will not be considered sufficient to put the employer on notice that the employee is making a request for unforeseeable FMLA leave.

Usual and customary notice requirements—foreseeable leave. An employer may require employees to comply with its usual and customary notice requirements for requesting foreseeable leave. The employer may delay or deny leave if the employee fails to comply with these requirements, provided that the employee's failure is not justified by unusual circumstances. Unusual circumstances would include, for example, a situation where the employee is required under the employer's policy to contact a specific individual or call a specific number to request leave and, on the day in question, no one is present to answer the phone and the voicemail box is full. However, FMLA leave may not be delayed or denied unless the employer's usual and customary procedures provide the employee with at least as much time to give notice as the regulations themselves provide for foreseeable leave.

Usual and customary notice requirements—unforeseeable leave. Even where the need for leave is unforeseeable, an employee must still comply with the employer's usual and customary notice requirements for requesting leave. However, the employer may not require employees to follow its call-in procedures when an employee needs emergency medical treatment. Also, the employer may not require employees to give advance written notice of the need for leave due to an emergency.

Recertification of the Need for Intermittent or Reduced Schedule Leave

In connection with a serious health condition or a serious injury or illness, leave may be taken on an intermittent or reduced schedule basis only when medically necessary. Employers generally choose to require the employee to provide medical certification in support of the need for leave. However, leaves taken on an intermittent or reduced schedule basis may span several months following the initial medical certification. Accordingly, the employer's right to request recertification can be helpful in confirming whether the need for leave due to a serious health condition has changed over time. The revised regulations include procedures for requesting recertification of intermittent or reduced schedule leaves.

As discussed in "Recertification of Need for Leave Under the FMLA," the general rule is that an employer may require recertification of a serious health condition no more frequently than the duration of the prior certification or every 30 days—whichever period is longer. However, regardless of the duration of the prior certification, in all cases an employer may request a recertification every six months. For example, if an employee provides a medical certification that supports the need to take a day off every month for a year, the employer may request a recertification after six months to confirm whether the reduced leave schedule is still medically necessary.

Also, even though an employer generally may not request recertification more frequently than every 30 days, the employer may request recertification in less than 30 days if the circumstances described by the previous certification have changed significantly. The regulations refer to changes in the duration or frequency of absences or the nature or severity of the illness. For example, if a medical certification stated that an employee would need leave for one or two days periodically when the employee had a migraine headache, but the employee's absences for migraines tend to last for four or more days, then the employer may be able to request recertification.

Another example might be a suspicious pattern of the employee taking unscheduled FMLA intermittent leave adjacent to scheduled days off. As part of the request for recertification in such cases, the employer may provide the health care provider with a record of the employee's absence pattern and ask the health care provider specifically to comment as to whether the serious health condition and the need for leave are consistent with such a pattern.

Scheduling of Intermittent or Reduced Schedule Leave

The regulations previously provided that employees who need to take intermittent or reduced schedule leave for planned medical treatment must "attempt" to schedule their leave so as not to disrupt their employer's operations. The regulations now require that if an employee needs leave intermittently or on a reduced schedule for planned medical treatment, "then the employee must make a reasonable effort to schedule the treatment so as not to disrupt unduly the employer's operations."

This change is unlikely to reduce disruptions to any significant extent. The commentary to the regulations makes clear that the employee's scheduling obligation applies when "it is just a matter of scheduling convenience" for the employee. Because doctors typically have busy schedules, in most cases it is likely that the employee's appointments and treatment times will be determined by the doctor's schedule rather than the employee's requests.

Increments of Intermittent or Reduced Schedule Leave

When an employee takes leave on an intermittent or reduced schedule basis, the employer must account for the leave in increments no greater than the shortest period of time that the employer uses to account for other types of leave, such as sick time and vacation time, provided that the increment used is not greater than one hour.

If an employer uses varying increments to account for non-FMLA leave taken at different times of the day or shift, the employer must account for FMLA leave in increments no larger than the shortest period used to account for leave during the same period in which FMLA leave is taken. For example, if an employer normally accounts for non-FMLA leave in increments of one hour, but accounts for leave in six-minute increments when employees arrive late for their shift, the employer must likewise use increments of no greater than six minutes to account for intermittent FMLA leave taken at the beginning of the shift.

Normally, an employee's leave entitlement may not be reduced by more than the amount of leave actually taken. However, in some situations, the nature of the workplace makes it impossible for the employee to commence or end work mid-way through a shift, even when the need for leave is only intermittent. For example, a flight attendant who needs to take two hours of leave for medical treatment obviously cannot enter or leave her shift during the flight. The revised regulations provide that in such cases of physical impossibility, the entire period that the employee is forced to be absent is designated as FMLA leave and counts against the employee's entitlement.

Transfer to an Alternative Position

The revised regulations continue to permit employers to transfer employees temporarily during the period that intermittent or reduced schedule leave is required. Such temporary transfer is permitted only when the need for leave is foreseeable based on planned medical treatment, including during a period of recovery from a serious health condition or a serious injury or illness, or if the employer agrees to permit intermittent or reduced schedule leave for the birth of a child or for placement of a child for adoption or foster care.

However, the regulations still do not allow employers to require temporary transfers in situations where such transfers would be most helpful to employers, such as in the case of an employee who has frequent, unpredictable absences for a chronic condition. The right to make a temporary transfer remains limited. Even if the employee's need for intermittent leave is foreseeable in the sense that it is regular, frequent or predictable, the regulations do not permit temporary transfer unless the need for intermittent leave is foreseeable due to planned medical treatment.

Going Forward

Employers must revise their FMLA policies, forms and practices in light of the new regulations. For assistance in doing so, please contact one of the lawyers in the Faegre & Benson employment counseling and compliance practice.

Further details are necessary for a complete understanding of the subjects covered by this summary. For this reason, the specific advice of legal counsel is recommended before acting on any matter discussed in this article.