Universally, HR managers wish that intermittent leave would just go away. Unfortunately, every HR department has to cope with its traps and technicalities. Today’s Advisor covers nine tricky aspects of intermittent and reduced schedule leave.”
1. Only for Medical Necessity
There must be a medical need for intermittent leave or leave on a reduced leave schedule. Thus, leave may be taken for planned or unanticipated medical treatment for—or recovery from—the employee’s serious health condition, or to care for a parent, son, or daughter with a serious health condition; or to care for a covered servicemember with a serious injury or illness.
Intermittent or reduced schedule leave is not available for non-medical reasons unless the employer agrees. For example, leave for bonding with a healthy new child would not be mandated; however, the employer could agree to provide it. (If the child has an illness, the illness could be a serious health condition that would qualify the employee for intermittent or reduced leave scheduling.)
Why would employees push to have their leave designated as FMLA? They want to gain the FMLA’s protections including job return guarantee and continuation of benefits.
2. Best Accommodated
In addition, the leave and the medical need must be best accommodated through an intermittent or reduced leave schedule. Thus, leave would not be required merely for the convenience of the employee.
3. Employee Must Cooperate in Scheduling
If an employee needs leave intermittently or on a reduced leave schedule for planned medical treatment, then the employee must make a reasonable effort to schedule the treatment so as not to disrupt unduly the employer’s operations.
4. You Can‘t Keep Asking About Need for Leave
Employees must establish the need for intermittent or reduced schedule leave only once, before the leave begins. Once leave is approved, employees may not be asked to reestablish the need for leave each time leave is needed.
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5. Lowest Increment
When an employee takes FMLA leave intermittently or on a reduced leave schedule, the employer must account for the leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave.
However, the increment of time may not be greater than 1 hour.
6. Can’t Charge More than Actual Time
An employee’s FMLA leave entitlement may not be reduced by more than the amount of leave actually taken. Meaning, if an employee leaves 30 minutes early for an FMLA-covered event, the employee may not be “docked” a full hour of FMLA leave, even if an hour is the shortest period of time that the employer uses to account for use of other forms of leave.
7. Can Use Shorter Increments
An employer may account for FMLA leave in shorter increments than used for other forms of leave. For example, an employer that accounts for other forms of leave in 1-hour increments may account for FMLA leave in a shorter increment if, for example, the employee arrives at work 15 minutes late, and the employer wants the employee to begin work immediately.
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8. Can’t Delay Return to Full Time
Once an employee who has been taking intermittent FMLA leave or put on a reduced schedule, is ready to return to work, the employer must return the employee to his or her original job or an equivalent position immediately. The employer can require that the employee give some notice of his intent to return to work, but it can’t require that the employee take more FMLA leave than necessary just so the employer can find a job to put the employee in.
9. May Require a Full Shift for Inaccessible Workplaces
Where it is physically impossible for an employee using intermittent leave or working a reduced leave schedule to begin or end work midway through a shift, the entire period that the employee is forced to be absent is designated as FMLA leave and counts against the employee’s FMLA entitlement. For example:
- a flight attendant or a railroad conductor is scheduled to work aboard an airplane or train
- a laboratory employee is unable to enter or leave a sealed "clean room" during a certain period of time
Note: This exception is applied narrowly. It is not available just because it is inconvenient for an employee to leave, for example, because the person is a member of a team that operates a piece of machinery.
In tomorrow’s Advisor, situations in which the employer may transfer an employee on intermittent leave to another job, plus an introduction to the book called the “FMLA Bible.”