FMLA Intermittent Leave: 8 Questions HR Teams Must Answer Correctly

A federal court in Maine once ruled that the FMLA does not provide "a blanket excuse for persistent pattern of tardiness" — and granted summary judgment to the employer. That decision, Brown v. Eastern Maine Medical Center (D. Me. 2007), frames the stakes for HR teams managing intermittent leave. One misstep in tracking or paperwork can lead to an FMLA interference claim.

Intermittent leave under the Family and Medical Leave Act lets eligible employees take job-protected leave a few hours or days at a time for a single qualifying reason. The flexibility helps employees. It makes tracking and paperwork tricky for HR.

What qualifies for intermittent leave?

FMLA-eligible employees may take leave intermittently or on a reduced schedule in four circumstances:

• For the employee's own serious health condition
• To care for a spouse, parent, son or daughter with a serious health condition
• For a qualifying exigency
• To care for a covered service member with a serious injury or illness

Leave for any of the three health-related reasons must be medically necessary. Employers can require certification from the employee's health care provider.

Must new parents be allowed intermittent bonding leave?

It depends on whether mother and child are healthy. If both are healthy, the FMLA leaves it to employers to decide whether intermittent leave works for bonding and care of a new child. Examples include part-time work on a reduced schedule or blocks of leave, if the employer agrees to the arrangement.

But if the child or the mother has a serious health condition related to childbirth, "the employer's agreement is not required," according to FMLA regulations. In those cases, the leave falls under serious health condition rules and must be medically necessary.

What is the difference between intermittent and reduced schedule leave?

Intermittent leave is the term most commonly used for both. Section 825.202 of the FMLA regulations defines the terms precisely:

• Intermittent leave is "FMLA leave taken in separate blocks of time 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," normally from full-time to part-time.

Can we transfer an employee on intermittent leave?

Yes, when the leave is foreseeable because of planned medical treatment, employers can temporarily transfer the employee to an available position that better fits the leave schedule. The temporary position does not need to be equivalent to the original job, but pay and benefits must remain the same. For a part-time transfer, the hourly rate stays the same, benefits cannot be cut, and vacation time can be prorated. The employee must be reinstated to the original job, or its equivalent, once the leave period ends.

Restrictions apply. Employers cannot use a transfer to discourage leave or create a hardship, such as moving an employee from headquarters to a distant branch or a less desirable shift.

Do employers have scheduling rights?

Yes. When planned medical treatment drives the intermittent leave or reduced schedule, the employee must make a reasonable effort to schedule treatment so it minimizes disruption to the company's operations, according to 29 C.F.R. § 825.203.

How do you calculate intermittent leave?

Time the employee was not scheduled to work may not be counted as FMLA leave. Employers must track intermittent leave in increments no larger than the smallest used for other leave types, and never more than one hour. For leave shorter than a full workweek, the amount used is a proportion of the employee's actual workweek.

An employee whose workweek is always 32 hours is entitled to 384 hours of FMLA leave in a 12-month period — 12 workweeks times 32 hours. When schedules vary week to week, employers can use a weekly average of hours scheduled over the 12 months before the leave began.

Overtime matters too. Required overtime the employee cannot work for an FMLA-qualifying reason may be counted against the entitlement. Voluntary overtime the employee skips cannot be counted.

How can we prevent abuse?

Require medical certification and periodic recertification. Employers can request recertification no more often than every 30 days, and only in connection with an absence. If certification shows the condition will last longer than 30 days, employers generally must wait until that period ends. In all cases, they can request recertification every six months in connection with an absence.

Employers may seek recertification sooner if the employee asks for an extension, if the duration or nature of the illness changed significantly, or if information surfaces that casts doubt on the stated reason for an absence.

Can we fire an employee using intermittent leave?

Workers cannot be fired for taking FMLA leave. But employers can lay off, discipline and terminate employees who violate company policies or perform poorly — even while on leave. The burden falls on the employer to show the worker would have faced the same measures without the leave.

In reductions in force, companies can lay off an employee on FMLA leave if they can prove the person would have been let go regardless, backed by an objective selection plan. Courts have posed a key question in misconduct cases: Why didn't you fire the person before they took leave? Often, employers do not realize how badly an employee was performing until they see the mess left behind.

The Maine case shows the limits of intermittent leave as a defense. The employee had 45 late arrivals or absences in six months, then 52 more over the next 12 months. She was suspended twice, refused an offer of medical leave, and was fired for excessive attendance policy violations. Afterward, a rheumatologist found a connective tissue disorder that made it "impossible" to arrive on time.

The court was unconvinced. It found no record that she ever asked permission to be late, no advance explanation, no lateness tied to a doctor's appointment or treatment plan, and no doctor had ever told her it was medically necessary to be late. Employers that document performance problems before leave begins, and track increments correctly, will be the ones positioned to win these disputes.