What is intermittent leave and how is it calculated?

What is intermittent leave? Are employers required to provide it? The Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) provide legal rights for eligible employees to take up to 12 work-weeks of job-protected time off in a 12-month period (and 26 work-weeks for servicemember leave). This time off may be taken either in a block of time or on an as-needed basis, aka intermittent leave.

FMLA defines intermittent leave as “leave that’s taken in separate blocks of time due to a single qualifying reason or on a reduced leave schedule.” Mary Topliff explained in a recent CER webinar. This leave may be taken for an employee’s serious health condition, or to care for a family member with a serious health condition. This would include leave for medical treatment or recovery, medical appointments, or for situations where the individual is unable to work due to a chronic condition – even when no treatment is received. To qualify, there must be a medical need for intermittent leave and that medical need must be best accommodated through intermittent leave or through a reduced leave schedule.

Types of intermittent leave include:

• Reduced work schedule. Usually this equates to working fewer days per week than previously worked.
• Change in the start or end time of the workday. This tends to occur to allow scheduling of medical appointments accordingly.
• Pre-planned absences. These might be for treatment, appointments, or to care for a family member.
• Last-minute time off. These absences are often due to flare-up conditions or other unexpected circumstances. This is the most difficult type of intermittent leave to accommodate because there is often no notice given.

When employees repeatedly take intermittent leave for their own or a family member’s long-term health condition, it can be disruptive to all parties involved. It can also be costly. The cost of absenteeism when employees are on intermittent leave can often exceed wages and benefits, and that amount increases even more when you factor in training replacements, reduced productivity, and decreased employee morale. However, because employees are legally entitled to this type of leave, it’s an employer’s job to figure out how to administer it correctly.

Calculating Intermittent Leave Time

Under the FMLA, the employer must “account for leave using increments that are no greater than shortest period of time the employer uses to account for other forms of leave, provided it’s not greater than one hour.” Topliff advised. However, there is also an exception to this. If it is physically impossible for the employee to begin or end their work mid-way through shift, then the entire period of absence can be counted against the FMLA leave entitlement.

Under CFRA the employer also may limit leave increments to the shortest period of time the payroll system uses to account for absences or use of leave. The primary difference under CFRA versus the FMLA is that CFRA doesn’t have any notation of the time not being greater than one hour.

Intermittent Leave Calculations and the Importance of Determining the Standard Work-Week

For both FMLA and CFRA, “the amount of time for the job-protected time off is described in work-weeks. In other words, it’s 12 work-weeks of leave time.” Topliff explained. This is important because the employee’s standard work-week duration, in hours, will then become the basis for calculating how much of the 12 work-week entitlement has been used during periods of intermittent leave equaling less than one week.

How do you deal with this type of calculation when an employee’s actual workweek fluctuates in number of hours? The FMLA regulations clarify this and say that if the employee’s schedule prior to taking the leave of absence varied, then employers should use the weekly average of the hours that were scheduled over the previous 12 months. That will then dictate what the standard workweek is for purposes of calculating how much of the entitlement has been used.

In another scenario, if the employee would normally be required to work overtime when not on leave, the hours the employee would have been required to work may be counted against the FMLA entitlement when taken intermittently.

The above information is excerpted from the CER webinar titled “Intermittent Leave in California: How to Correctly Apply FMLA/CFRA Rules and Stop Abuse.” To register for a future webinar, visit CER webinars.

Mary Topliff, Esq. founded the Law Offices of Mary L. Topliff in San Francisco, specializing in employment law counseling, training, and compliance, while focusing on practical solutions to avoid costly legal issues. Topliff is also a published author and frequent speaker on legal issues impacting the workplace.