Intermittent FMLA (Family and Medical Leave Act)
As businesses worldwide continue to struggle with absenteeism among employees due to the ongoing COVID-19 pandemic, employers and employees are still unaware of several aspects relating to the Family and Medical Leave Act Intermittent amendment.
The US Congress adopted the Family and Medical Leave Act (FMLA) in 1993 to provide employees with job security when they have to miss work to care for their health, or the health of their family members and dependents. This act also covers leaves of absence related to a family members’ military service too. However, there is widespread confusion among employers and employees about the clauses in the “intermittent” or “reduced-schedule” leave that employees frequently require.
What is the Employee Entitled to Under the Intermittent or Reduced-Schedule Leave?
Under the FMLA, eligible employees can take up to 12 weeks of unpaid sick leave with a year. All medical emergency leaves under FMLA should be granted on a part-time (intermittent) basis. Such reduced-schedule leaves that an employee gets come under FMLA, which can be taken within specified time periods but are less than what the employee is entitled to in total.
According to a court order, intermittent leave is classified as “a series of absences, separated by days during which the employee is at work, but all of which are taken for the same medical reason, subject to the same notice, and taken during the same twelve-month period.” (Davis c. Mich. Bell Tel. Co., 543 F.3d 345, 350-51 (6th Circuit 2008).
For instance, intermittent leaves could be taking days irregularly or missing half-day work in a week, or even missing work an hour or two at a time to take care of a chronically ill spouse, children or parent, or to stay home with the patient when they are advised to care. Essentially, the intermittently applied leaves are deducted from the employee’s 12-week entitled leaves.
In addition, qualified employees can take intermittent or reduced-schedule leaves without employer consent, in case they need to be present for pregnancy care of their spouse, serious health disorder or injury to a dependent service member. However, an employee seeking intermittent or reduced schedule leave for adoption or placement of the child in foster care will need to get the employer’s approval beforehand.
In case both spouses work for the same employer, then both spouses are entitled to a combined leave totaling 12 weeks when the intermittent leaves are for the care of a newborn child or newly adopted child.
What are the Employers’ responsibilities for FMLA Intermittent leaves?
Employers need to create clearly written policies that have details of both parties’ responsibilities when it comes to FMLA leave, which also includes intermittent leave. Having easy-to-read policies that have been acknowledged in writing by the employees helps employers to manage employee expectations and decrease the risk of confusion or misunderstanding.
Employers should also have regular sessions with employees to explain the specific reasons that qualify them for FMLA intermittent leaves. It is normal for an employee to not use the words “FMLA” or “serious health condition” in their leave applications so employers are responsible for determining whether the given reason falls under FMLA leaves. This can be done with the employers enquiring with the employee to determine if the employee’s leave request qualifies under FMLA intermittent leave clause. It is inadvisable to ignore an employee’s routine leave request for time off without checking for its validity as described under FMLA directives.
In addition, employers should train all high-level management to identify intermittent leave requests that fall under FMLA.
What are the Employee’s responsibilities for FMLA Intermittent leaves?
Employees should at least provide clear and detailed information for the need to take intermittent leaves or reduced-schedule leaves by obtaining the essential medical certification from a healthcare provider (doctor/physician). Employees are also responsible for providing applications for leave well in advance.
There are situations where an employee is unable to determine the exact schedule when they apply for urgent intermittent leaves for emergency purposes. For instance, several chronic disorders flare infrequently and create medical emergencies, which are not always possible to predict. In such situations, the employees are responsible for communicating with supervisors in writing each time they need to take an urgent intermittent leave without being able to provide sufficient advanced notice. Additionally, employees should have a doctor’s note (or similar proof) handy to explain the need for urgent and spontaneous leave. The employee also needs to follow a call-in policy in case it is mandated within their employment contract.
Last, but not least, employees should not abuse the provisions under the FMLA by taking it for reasons not covered under its clauses.
The FMLA may seem confusing to employers and employees alike, especially if they are not diligent enough. This is especially true when it comes to applying for, and grant, intermittent or reduced schedule leaves. Employers need to consider intermittent leaves seriously and employers need to show appropriate sensitivity to the problems employers may face from their infrequent absence.