FMLA 103, part of the HR Summer School Back-to-Basic Series, addresses the very hot topic of intermittent leave. Most HR professionals would agree that the FMLA’s intermittent leave is one of the most difficult types of employment laws to administer. In fact, a great number of the FMLA calls I get are, in some way, related to intermittent leave.
For each question, I start my answer in the same way–with the basics. Sometimes I find that, even the most knowledgeable HR professionals will skip the basics when there is a particularly unusual set of facts involved. To make sure we don’t overlook the forest for the trees, sometimes it’s helpful to start at the beginning.
What is Intermittent Leave?
The regulations prove that an eligible employee may take “intermittent leave” or go onto a “reduced leave schedule.”
Intermittent leave is multiple instances of leave taken in separate blocks of time as opposed to one chunk of time, such as X days or weeks. All of the instances of leave, though, are due to a single qualifying reason.
A reduced leave schedule is a leave schedule that reduces an employee’s
usual number of working hours per workweek, or hours per workday. A
reduced leave schedule is a change in the employee’s schedule for a
period of time, normally from full-time to part-time.
Leave for Birth of a Child or Placement of a Child for Purposes of Adoption or Foster Care. In this case, an employee may take leave intermittently or on a reduced leave schedule only if the employer agrees. But remember that the employer does not have the discretion to “agree” if leave is need for an employee who has a serious health condition related to the birth of her child, or where the leave is related to her newborn’s serious health condition.
Planned Medical Treatments. Intermittent leave may be taken for a serious health condition that requires periodic treatment by a health care provider. In this instance, leave could be needed on an occasional basis for medical treatments, i.e., weekly kidney dialysis, or it can involve leave taken in blocks of days spread over a period of months, i.e., chemotherapy. A common example of leave taken for planned medical treatments is a pregnant employee who takes intermittent leave for prenatal examinations.
Recovery from Medical Conditions or Treatments. Remember that time spent recovering from these treatments is also entitled to intermittent or reduced-scheduled leave. For example, an employee may need a reduced schedule following radiation therapy until he develops the strength to work a full workweek.
Unanticipated Need for Leave. An otherwise-FMLA-eligible pregnant employee suffering from morning sickness also would qualify for intermittent leave. Pregnancy meets the standard for a serious medical condition for which the employee is under the care of a health care provider.
Immediate Family Members. An eligible employee may take intermittent leave to care for an immediate family member who has, is being treated for, or is in recovery from a serious medical condition. Just like leave for the employee himself, he may need unanticipated leave to care for his family member. And remember that “caring for” is not limited to providing medical care in the strict sense. Just providing psychological comfort, as we all know, can qualify as health care.
Leave Where No Treatment Is Being Provided. Intermittent or reduced schedule leave may be taken where the employee or the family member is incapacitated or unable to perform the essential functions of the job–even if not receiving treatment from a health care provider. If an employee’s parent, for example, has a terminal illness, the employee can take leave to “care,” i.e., to provide comfort for, his parent, regardless of whether or not the parent is still being treated for the illness.