A Most Unusual Time
Rules on FMLA Intermittent Leave By Jill Hay, PAGE General Counsel
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lthough PAGE has written previously about employee rights under the Family Medical Leave Act (FMLA), this article seeks to provide information and clarity specifically on intermittent leave under this law — particularly important during this most unusual time. If an employee works for an employer with 50 or more employees within a 75-mile radius and such employee has been working for the employer for at least 12 months and a minimum of 1,250 hours in the preceding 12-month period, the employee will be eligible for protected leave under the FMLA. FMLA guarantees reinstatement to the same or equivalent position and it protects the employee from discipline or discharge for taking such leave. It provides for 12 workweeks of unpaid leave for eligible employees in a 12-month period for: • Serious health conditions of the employee; • Serious health conditions of the employee’s spouse, parent or child; • The birth of a child or placement for adoption or foster care; • The qualifying exigency of an employee’s spouse, child or parent who is on active duty or called to active duty; • The employee’s need to care for a spouse, child, parent or next of kin that is a covered service member. (This one allows for up to 26 workweeks.) In certain circumstances as described below, FMLA does allow for the 12 workweeks to be taken as intermittent or reduced schedule leave. Intermittent leave is taken in separate blocks of time due to one serious health condition, for example, weekly dialysis appointments. Reduced schedule leaves are those that reduce the employee’s usual number of working hours per work week or work day. To take either intermittent or a reduced schedule leave, the employee must have a doctor’s certification that there is a medical need for the leave, which can be best accommodated through either intermittent or 28 PAGE ONE
reduced schedule leave. The doctor’s certification should be specific with regard to the treatment regimen, anticipated frequency or duration, and medical necessity. For whom may an employee take FMLA intermittent or reduced schedule leave? An employee may take intermittent or reduced schedule leave for the employee’s own serious health condition or for a serious health condition of a parent, child or spouse, or for a serious illness or injury of a covered service member. It is important here to note the definitions of “child” and “parent.” The definition of child includes a biological, adopted, or foster child, a stepchild, a legal ward or a child of a person standing in loco parentis, but such child must be under 18 years of age, or 18 years of age or older and incapable of self-care because of a mental or physical disability. The definition of a parent includes biological parents but does not include inlaws nor does it include grandparents. Examples of need for intermittent or reduced schedule leave: • Employee who needs leave taken on an occasional basis for medical appointments or treatments due to a serious health condition of her own or that of a parent, child or spouse. • Employee recovering from a serious health condition who is not yet strong enough to return full time and needs a part-time schedule. • Employee who has a chronic health condition like asthma where he/she needs a day occasionally for a flare-up of the condition. Examples where intermittent leave is NOT allowed under FMLA. (However, employer can give permission pursuant to local policy at their discretion.): To bond with healthy child after birth, adoption or foster placement. (Can take regular 12-weeks FMLA leave but not intermittent or reduced schedule).
Employee and Employer Requirements: The employee must make a “reasonable effort” to schedule treatments and doctor’s appointments so as not to unduly disrupt the employer’s operations. The employer is allowed to temporarily transfer the employee to a different position that better accommodates the intermittent or reduced schedule leave. The position must have equivalent pay and benefits, but does not have to have equivalent duties. The employer is NOT allowed to transfer the employee simply to discourage an employee from taking this leave. If the serious medical condition will last longer than 30 days, the employer can request recertification every six months. However, if the condition will not last more than 30 days, the employer is allowed to ask for a medical recertification no more often than every 30 days. The employer can ask for it before 30 days in any of the following exceptions: • The employee requests an extension of the leave; • Circumstances described by the previous certification have significantly changed; • The employer receives information that casts doubt on the employee’s stated reason for the absence (for example, the flare-ups substantially exceed the projected number certified by the doctor or the absences excessively fall in conjunction with holidays or weekends). At the end of the FMLA leave, the employee must be reinstated to the same or similar position. Many additional aspects of the FMLA are not discussed in this article. For questions on your rights and responsibilities, review the policy in your school district’s personnel handbook and, for additional questions, you may call 800-334-6861 or 770-216-8555 and select option 1. Or, email directly at tbell@pageinc.org or n cwhite@pageinc.org. August/September 2020
