Your guide to navigating FMLA intermittent leave
Everything you need to know about managing FMLA intermittent leave with examples and FAQs.
Everything you need to know about managing FMLA intermittent leave with examples and FAQs.
Anyone who’s ever managed leave knows that people take leave in many different ways—and it’s often not in a single, continuous period. This is known as intermittent leave, a type of leave employers struggle to administer because of the complexity and special FMLA rules that apply. Navigating complexity is our middle name, so we’ve put together this guide to help you understand those rules and feel more empowered to manage these important leave cases.
💡Pro tip: Get guidance on employee eligibility rules and what types of conditions apply for FMLA with our FMLA compliance checklist here.
A lot of leave cases are lumped into the intermittent leave category but there are some significant nuances that are important to call out. The TL;DR is that intermittent FMLA leave is any FMLA leave taken in separate blocks of time due to a single qualifying reason (this is governed by 29 CFR 825.202(a)). They can pose unique challenges for employers because the intermittent absence, regardless of duration, is legally protected regardless of the operational hardship it may pose. Employers often separate intermittent leave into three categories:
For simplicity, we’ll refer to it as intermittent leave from here on out, but the advice can apply for all three types described above.
Not all FMLA leave can be taken intermittently, so it’s crucial for employers to understand which reasons for leave do qualify. Employees can take intermittent leave for their own medical condition or to care for a qualifying family member—these two reasons must be “medically necessary,” which is documented with a serious health condition form.
Some example reasons for leave:
Regardless of whether someone is taking a continuous, intermittent, or reduced schedule FMLA leave, many components and requirements are the same. However, there are a few nuances particular to intermittent leave. Here’s a simplified breakdown:
Intermittent leave intersects and diverges with things like continuous leave and PTO, which can prompt some of these FAQs.
No. Under the FMLA, once an employer knows that a request for PTO is for an FMLA-qualifying event, an employer must designate the absence as FMLA-qualifying. From there the employee can elect to use PTO to cover any unpaid portion of the leave. Ultimately, this is for the employee’s benefit to be protected by the FMLA and to avoid disciplinary actions if their employer perceives “absenteeism” versus a legally-protected absence.
No. Again, if employers know an employee is absent for an FMLA-qualifying reason, they must designate that absence as FMLA-qualifying. Most employers run company medical leaves concurrently with FMLA or other statutory leaves to minimize the period of time an employee is away from work, but employers could run their own medical leave policy after FMLA is exhausted (aka “stacking”).
Also, employers should ensure that their company leaves are truly overlapping with FMLA leaves. Employers need to verify what conditions and situations their company’s leave policies do and do not address. For example, an employer’s leave policy might cover leave for family members that are not covered under FMLA (e.g., domestic partners, grandparents, and grandchildren). If employers feel unsure about any of this, we recommend going in-depth with our FMLA and parental leave checklists. Even if there’s already a policy in place, these checklists offer questions and considerations for situations employers might face with intermittent leave to help plan ahead.
It depends. Employers can retroactively designate FMLA leave if they send designations within the time frame required by law—which is within five business days of receiving all of the supporting documentation that they require to determine if the leave was FMLA-qualifying. If an employer takes longer than five days, they can still retroactively designate the absences as FMLA-qualifying, just as long as this doesn’t unfairly prejudice and impact the employee.
For example, if an employee was expecting to save their FMLA for the birth of their child, but it was retroactively designated towards a caregiver leave, they could argue that they would have pursued other options to care for their family member had they known about the designation.
Another example: if an employee was absent intermittently for 10 days in September, but an employer only received a complete and sufficient medical certification supporting the need for intermittent leave on September 30th, they could retroactively designate all of the September absences as FMLA-qualifying.
Navigating the complexities of intermittent leave is crucial for both employers and employees. By understanding its nuances and leveraging tools like Cocoon, organizations can ensure compliance while providing the flexibility that employees need during challenging times. A well-managed intermittent leave not only supports the health and well-being of employees but also maintains the smooth operation of the business. With the right approach and resources, intermittent leave can be a win-win situation, fostering a supportive workplace culture.