50 Laws in 50 States Compare side by side and see
exactly what employers need to do
Final regulations under the Family and Medical Leave Act (FMLA), were issued Nov. 14, 2008, by the U.S. Department of Labor (DOL). The new regulations allow employers more control over when employees can take leave. As expected, the new regulations cover the recently enacted leave benefits for family members of both seriously injured or ill service members and National Guard and Reserve members who have been called to service. These are the first significant revisions to the FMLA regulations since the law was enacted 15 years ago and will affect all employers subject to the FMLA. Read more about the new regulations Read more about the new regulations
Family and Medical Leave Act (FMLA) leave may be taken “intermittently” or on a “reduced leave schedule” under certain circumstances. Intermittent leave is FMLA leave taken in separate blocks of time for a single illness or injury. A reduced leave schedule reduces an employee’s usual number of working hours per workweek, or hours per workday. It is a change in the employee’s schedule for a period of time, normally from full-time to part-time. Employees must show the medical necessity for intermittent leave or a reduced leave schedule.
When are employees entitled to intermittent leave?
Under the FMLA, eligible employees are entitled to take – and you must grant – intermittent leave or leave on a reduced schedule when their own “serious health condition” renders him unable to do his job. In addition, you also must grant intermittent leave to employees who needs to care for a spouse, son, daughter or parent with a serious health condition. Under the FMLA’s military leave provisions, employees also may use intermittent leave for qualifying exigencies and to care for a covered servicemember with a serious illness or injury. [Insert reference to military fmla page]. The care needed can encompass both physical and psychological care and can even include driving the family member to the doctor.
When may an employer voluntarily allow intermittent leave?
Employees who desire to take intermittent leave or a reduced leave schedule after the birth of a healthy child, or after adopting or fostering a healthy child, can do so only if you agree to it. For example, an employee may want to work part-time after the birth of a child, and have her reduced schedule count as FMLA leave so that she will receive job protection and benefit continuation. Under the FMLA, you may allow her to do this, but you are not required to do so.
When an employee is considering taking intermittent leave, it is a good idea to remind her that if she intends to take intermittent leave she must make a reasonable effort (which is a greater effort than under previous regulations that simply required an attempt) to schedule her leave without disrupting your operations. Employees must give 30 days’ notice for intermittent leave that’s foreseeable that far in advance, or as much notice as practicable if it’s not possible to give 30 days’ notice. If the need for intermittent leave is unforeseeable, the employee must give notice as soon as practicable. It generally should be practicable for the employee to follow your usual and customary notice requirements for such leave.
Total amount of time available
Taking FMLA leave intermittently or on a reduced schedule doesn’t affect the total amount of leave available to an employee (12 weeks in a 12-month period or up to 26 weeks in a single 12-month period for military caregiver leave) and is deducted as it is used. Only the time actually taken is charged against the employee’s available leave. You generally must account for the leave using an increment no greater than the shortest period of time that you use to account for use of other forms of leave, provided that it is not greater than one hour.
Transferring employee to available alternative position to accommodate intermittent leave
You can transfer an employee to an “available alternative position” with equivalent pay and benefits to accommodate intermittent leave or a reduced leave schedule. This option, however, is available only when:
the employee is taking foreseeable intermittent leave;
the employee is qualified for the position; and
the position better accommodates recurring periods of leave than the employee’s regular position.
The transfer is temporary, meaning limited to the time that intermittent leave or a reduced leave schedule is needed. Transfer may require compliance with an applicable collective bargaining agreement, federal law (such as the Americans with Disabilities Act), and state law. It also may include altering an existing job to better accommodate the employee’s need for intermittent or reduced schedule leave.
Return from intermittent leave or reduced work schedule
Once an employee who has been taking intermittent leave, or put on a reduced schedule, is ready to return to work, you must return him to his original job or an equivalent position immediately. You can require that he give you some notice of his intent to return to work, but you can’t require that he take more leave than necessary just so you can find a job to put him in.
Related articles on FMLA Intermittent Leave from the State Employment Law Letters designates additional valuable resources available exclusively to Employment Law Letter subscribers
designates additional valuable resources available exclusively to Employment Law Letter subscribers