Can employees take intermittent FMLA leave?

The Family and Medical Leave Act (FMLA) is a well-known law among employers and employees alike. While this particular law can be complex at times, its primary purpose is to allow employees to take unpaid leave to deal with specific family situations and health-related conditions. In fact, the FMLA can often provide up to 12 weeks of unpaid, job-protected leave during a 12-month period for eligible employees.

But what happens if the employee doesn't want to take the leave all at once? Can they split up their 12 weeks and take intermittent FMLA leave? And does the employer have any options in such cases? Read on to find out the answer to these and other FMLA-related questions.

What is intermittent FMLA leave — and how does it work?

As you can probably guess from its name, intermittent FMLA leave is when an eligible employee seeks to take leave in separate blocks of time for a single reason, such as a serious medical condition. Alternatively, an employee may seek a reduced leave schedule, which is when the employee reduces their usual weekly or daily work hours. One thing to remember is that an eligible employee can generally only take intermittent or reduced-schedule leave under the FMLA when it is medically necessary.

For example, an employee may request intermittent FMLA leave for a few half days a week to take a chronically sick family member — like a spouse or child — to doctor appointments. Similarly, an employee suffering from cancer may seek a reduced schedule of 24 hours a week so they can use the time off for chemo or other treatments. But regardless of whether the employee is taking intermittent FMLA leave or reduced-schedule leave, any time taken off is subtracted from the original 12 weeks of leave.

Who can take intermittent FMLA leave?

Not everyone is eligible for intermittent leave under the FMLA. For starters, employees must typically first meet basic FMLA requirements, such as:

The employee works for a “covered employer," including private-sector employers with at least 50 employees or public agencies such as state or local governments.

• The employee has worked for the employer for 12 months.
• The employee has worked at least 1,250 hours during the 12 months prior to the leave.
• The employee works at a location which has at least 50 employees at that specific location or within 75 miles of the location.

If the employee is eligible for FMLA leave and works for a covered employer, they may be able to seek intermittent FMLA leave, assuming it’s medically necessary. Some of the situations that may give rise to intermittent leave may include:

• The employee has a serious health condition that makes the employee unable to work and the health condition is best accommodated through intermittent or reduced scheduled leave.
• The employee needs to care for a family member — including a spouse, child, or parent — who is suffering from a serious health condition and the health condition is best accommodated through intermittent or reduced scheduled leave.

Does the employer have to consent before an employee can take intermittent FMLA leave?

Like other instances in which an eligible employee qualifies for FMLA leave, the employee usually doesn't need their employer's consent for intermittent FMLA leave that is medically necessary, including when the leave is necessary due to a pregnancy or serious health condition.

But there is a caveat: an employee should make reasonable efforts to schedule planned medical treatments so they do not unduly disrupt the employer's operations. Also, the employee will likely need to provide their employer a medical certification from their medical provider.

It's important to note, however, that there are other situations in which the employee will need employer approval for intermittent FMLA leave. For example, while an employee may be able to take general FMLA leave following the birth of a child or placement of an adopted or foster child, they can usually only take this leave on an intermittent basis if they have the approval of their employer.

Where can I find more information about intermittent leave under the FMLA?

While the FMLA has been around a long time, that doesn't mean it can never change. Lawmakers routinely review and update laws all the time and there's no guarantee they won't choose to change the FMLA as well — meaning what's in force today may no longer be in force tomorrow.

So, what's the easiest and most accurate way to keep up to date on the most important laws and practice areas? The answer: Practical Law. Sign up for your free trial today.