In 1993, Congress passed the Family and Medical Leave Act so that employees who are forced to miss work to care for their own serious medical conditions, to care for the health conditions of their family members, to care for new children or because of their family members’ military service can have job security. One type of leave that is allowed under the FMLA is called intermittent leave.
Understanding intermittent leave under the FMLA
The FMLA allows workers who are qualified and who work for employers that are covered by the FMLA to take up to 12 weeks off from work on an unpaid basis in 12 months. When it is deemed to be medically necessary, FMLA leave must also be granted on an intermittent basis. This is FMLA leave that you can take in chunks of time that are less than the full 12 weeks to which you are entitled.
Intermittent leave is occasional leave that you must take to care for the same medical condition. For example, you might be forced to miss a half day of work each weak to get a needed treatment or to take your child to medical appointments for chronic health conditions.
Most types of intermittent leave do not require your employer’s consent. However, if you need intermittent leave for foster care for a child or adoption, you will need to get the approval of your employer. If you work with your spouse, the two of you may only take up to a combined 12 weeks off from work to care for a newly born child.
If there is a qualifying emergency such as your family member’s short notice deployment, you will not be required to obtain your employer’s consent so that you can take care of the details to prepare. Employers are also prohibited from denying you overtime hours that you would otherwise have received if you had not taken FMLA leave.
Holidays that happen while you are on intermittent leave do not count towards your total entitlement unless you were originally scheduled to work on the holiday. If your employer’s company is closed for longer than a week, the days when it was closed do not count against your total leave entitlement for the year.
Responsibilities of employers
Employers should have written policies that clearly detail the responsibilities of the employers and the employees for FMLA leave. When workers ask for time off because of a health condition or to care for their loved ones, the employers should try to determine whether the reason is one that falls under the FMLA. If it is facially apparent that the leave request falls under the FMLA, the employers should grant it.
If a worker has to begin his or her leave without having time to notify the employer so that the request can be fully evaluated, the employer should talk to the employee and let them know how the request is initially being treated. The employer may ask for a medical certification from the employee. Employers might also ask for recertification of the leave if it will be needed on a continuing, intermittent basis.
Employers are responsible to identify and follow all applicable laws that might apply to an employee’s medical leave request. If a worker requests medical leave that will extend beyond the FMLA-provided 12 weeks, the employer must determine whether the extended leave constitutes a reasonable accommodation under the ADA.
As an employee, you must give your employer information about why you need intermittent leave and obtain the medical certification from your doctor. It is also important for you to give your employer as much advance notice of your need for leave as you can. If it is impossible for you to know when you will need to take intermittent leave because of the nature of your medical condition, you should still notify your employer in writing every time that you need to take leave. You are also responsible for adhering to your company’s policy for calling off from work. When you take intermittent leave, the time away from work must be spent on the purpose that is covered by the FMLA and cannot include other unrelated tasks.
If you have been denied intermittent leave under the FMLA by your employer or have been retaliated against for taking intermittent leave, you may have legal rights. Contact the Law Offices of Swartz Swidler by filling out our contact form to learn more.