What is intermittent leave?

Does your employer have to allow you to work every other day or work less hours to take care of your serious medical condition? Do you have to take your Family and Medical Leave Act leave all at once?

The Family and Medical Leave Act (FMLA) gives gives employees the right to twelve weeks of job-protected, unpaid leave in any twelve-month period for certain family and medical circumstances. This leave taken under the FMLA is referred to as FMLA leave.

Thus, an employer must give its employees leave when they request it under the FMLA. Further, an employer cannot fire an employee on FMLA leave or fire an employee because he is about to take FMLA leave.

The FMLA covers employers who have employed 50 or more employees for at least twenty weeks. Unlike with Title VII of the Civil Rights Act and the Age Discrimination in Employment Act, employees for purposes of the FMLA are defined using the payroll method—that is, if a worker is on the payroll, he is an employee.

However, not all employees are entitled to FMLA leave. The FMLA only grants rights to those employees who work for a covered employer, who have been employed by that employer for at least twelve months, who has been employed for at least 1,250 hours of services for that employer during the previous twelve months, and who has been employed at a worksite where that employer has 50 or more employees within 75 miles of the site.

Employees are entitled to FMLA leave only under certain circumstances: the birth of a child or to care for a newborn child, the placement of a child for adoption or foster care, to care for a family member with a serious health condition, or because the employee has a serious health condition that keeps him from performing his job.

Intermittent leave is leave taken for a single reason, but in separate—not continuous—periods of time. For example, if an eligible employee is entitled to twelve weeks of FMLA leave, taking the leave intermittently would be taking leave every other week from twenty-four weeks, or working half-days for twenty-four weeks. Intermittent leave can be reducing the number of hours worked per day. It can be reducing the number of days worked per week. It can also be taking a week off here and there as medically necessary.

Employee can take intermittent leave when it is medically necessary to care for a family member or because of the employee’s own serious health condition. Intermittent leave can be taken for medical necessity—as opposed to voluntary treatment—if the intermittent leave is the best option for dealing with the medical issue.

Take, for example, a pregnant employee who has morning sickness that makes her unable to work first thing in the morning. The FMLA permits her to take intermittent leave because of her serious health condition by coming to work late each morning while pregnant. Similarly, an eligible employee whose HIV medication makes him too sick to work can take intermittent leave under the FMLA.

However, eligible employees can only take intermittent leave to care for a newborn child or for the placement of an adopted or foster child if the employer agrees.

An employee wishing to take intermittent leave must give the employer thirty days’ notice if the need for intermittent leave is foreseeable. If it is unnecessary, notice must given as soon as it is practical.