At home bonding with the new baby – back in a couple hours

Here’s a familiar scenario for many employers: A worker requests family medical leave – say two weeks – to treat a medical condition. A few days after returning to work, he says he needs another week of FMLA leave, followed by a series of half days off for follow-up doctor visits.

How, exactly, are employees allowed to use up their allotted 12-week FMLA leave?

The following summary should help employers understand the concept of intermittent FMLA leave.

Intermittent FMLA: Separate time blocks, one reason

Under the law, intermittent FMLA leave means “leave taken in separate blocks of time due to a single qualifying reason.” Employers have the right to grant it differently than they grant single-block family medical leave.

Here’s how to deal with two common situations involving intermittent FMLA leave.

  • Employees with a serious health problem. Intermittent FMLA leave must be granted when it is medically necessary, whether it is planned or unanticipated. For example, say an employee takes three weeks of leave for a back operation, and then returns to work. After that, the employee takes a half-day of intermittent FMLA leave once a week for physical therapy. In this kind of situation, family medical leave may be for as little as one hour.

  • Employees with a new child at home. While all eligible employees are entitled to up to 12 weeks of unpaid FMLA leave for the birth or adoption of a child, federal law permits the employer to decide whether to permit intermittent FMLA leave in this situation. According to the DOL, employers who chose to grant intermittent FMLA leave for the arrival of a new child may limit the minimum duration. For example, an employer may grant intermittent FMLA leave for the arrival of a new child, but stipulate that the leave may be in one-week blocks only.

Managing intermittent FMLA leave

The law provides some guidance as to what employers can do to lessen the intermittent FMLA burden on business operations:

  1. Check that the intermittent FMLA absences meet the legal standard. Employers may deny intermittent FMLA leave to care for a new child. As for a relative with a serious medical condition, the law says the employee seeking time off must show that leave is medically necessary. For example, accompanying a disabled parent or spouse to their medical treatment would qualify as medically necessary intermittent FMLA leave.
  2. Request re-certification justifying the FMLA leave. An employer may do this when the employee requests an extension of intermittent FMLA leave, when the circumstances described by the previous condition have changed or if the employer receives information that casts doubt on the claim.
  3. Contact medical providers indirectly about intermittent FMLA time off. While employers may not directly contact medical providers, they may insert questions in the re-certification form. For example, an employer suspicious about intermittent FMLA leaves occurring during trout fishing season may include the employee’s absences in the re-certification request and ask the health care provider to confirm the leave.

Source: Fisher & Phillips, LLP

1 Comment

  • jan says:

    I started working in a (NY) hospital in 03.2009, in Sept. 2008 I filed a FMLA, (because of severe back pain, mutliple back problems) when supervisor gave me the form FMLA, she stated its to protect you, my PCP filed it out, I gave it Human Resources, *HR respond that it was ok. H.R gave a copy of this letter* to my supervisor, in April 2009, supervisor & office manager gave me a write up because of my absences, I had a meeting with delegate, he told them FMLA is for 12 weeks, and in Sept. of 2009 I should get a new one, that I should have not been written up, my supervisor has been giving me more work then my co-workers, and always saying things to me alone, but always says the we co-workers and I don’t like to take directive orders, she says this to me when I’m the only one in the room. I Aug. 2009 I went on disability, returning in Nov. 2010, I know my supervisor does not want me there and will make my working situation as miserable as possible, what can I do when I return and they start with nonsense. also supervisor is trying to get someone in my position, person is there as temporary since Oct. 2010.

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