Intermittent FMLA: Everything You Need to Know

The Family and Medical Leave Act (FMLA) was created to give eligible employees up to 12 weeks of unpaid leave for family and/or medical issues without losing their job or being penalized in any way by their employer. 

If the employee has health insurance, group health coverage also continues while they're on leave. And while many people will take their time off all at once, this type of leave can also be taken intermittently. 

But FMLA leave—including FMLA intermittent leave—can be complicated, especially from the employer's POV. 

Let's take a look at everything you need to know about intermittent leave and eligibility, including FMLA-qualifying reasons, types of leave, and helpful examples to guide you (and your employees!) as you navigate the leave process. 

What is Intermittent FMLA—And How Does It Work?

Intermittent FMLA is unpaid leave that's taken in separate, non-consecutive increments for the same issue (a.k.a. qualifying exigency)—instead of taking all eligible leave consecutively. 

What Qualifies an Employee for Intermittent Leave

• Caring for a serious health condition
• Caring for an immediate family member (which is defined as a child, spouse, or parent) with a serious health condition
• Caring for and/or bonding with a newborn or adopted child (if the employer approves)
• Caring for a member of the armed forces

What Doesn't Qualify

• Dealing with a short-term illness, like a cold
• Caring for a distant family member, like a cousin

Intermittent FMLA can also be taken on a reduced leave schedule, which means your employee works fewer hours in a day or week than they normally would.

For example, say that one of your employees needs to cut back her weekly hours from 40 to 32 over the next four months to help care for a parent. This kind of reduced leave schedule results in her taking 8 hours of FMLA leave per week. That's allowed under federal law.

Is FMLA the Same As Taking Sick Leave?

FMLA is different from regular sick time because it's unpaid. Paid sick leave, or "earned sick time," is something that your employees likely accrue over time, and maxes out—often at or around 40 hours per year. 

This kind of sick leave is fine for employees who need to stay home for a few days if they have the flu or go to a one-off daytime doctor's appointment. Employees take FMLA when they need a larger chunk of time away from work or have an ongoing medical issue, typically more than one week.

How Far in Advance Does an Employee Need to Request FMLA Leave?

While it's not always possible, if an employee knows they need to take intermittent FMLA leave (for example, for a planned medical procedure), they need to provide 30 days of advance notice. 

If giving 30-day notice is not possible, the employee needs to let you know they'll be taking leave "as soon as possible and practical"—which, in certain situations (like an emergency or an unforeseen medical issue), may be at the time they need to take leave.

How Employees Apply for Intermittent FMLA

To apply for intermittent FMLA, your employee will need to bring an FMLA Medical Certification form to their healthcare provider and return it to you within 15 days. This form will give you the information you need to determine if your employee is qualified for leave through FMLA. 

Once you've received the completed medical certification, you'll need to provide a designation notice to the employee within 5 days. This notice will inform your employee whether their intermittent leave is approved or denied or if they need to gather more information for the medical certification before getting approved for their leave.

FMLA leave doesn't renew at the beginning of each year, but employees can reapply for up to 12 weeks of intermittent FMLA every 12 months if necessary. 

So, if your employee needs a follow-up surgery or welcomes another child into their family next year, they'd go through the application process again—and, as such, you would need to collect a new round of paperwork.

What Employees Qualify for Intermittent FMLA?

The eligibility requirements for intermittent FMLA are the same as continuous FMLA leave, including an emergency or chronic health condition, the birth or adoption of a child, or the care of a dependent with a serious medical condition.

Speaking of eligibility, employees must meet basic FMLA requirements to be able to take intermittent job-protected leave. Employee's FMLA requirements include:

• The employee has worked for you for at least 12 months.
• The employee has worked at least 1,250 hours during the last 12 months prior to their leave.
• You are a covered employer—meaning you're a private-sector employer with 50+ employees.
• The employee works at a location that has at least 50 employees at that specific location or within 75 miles of the location.

What is the Difference Between FMLA and Intermittent FMLA?

FMLA typically refers to continuous FMLA, which is a type of leave taken (up to 12 weeks per year) all at once. Intermittent FMLA is leave that can be taken more sporadically and nonconsecutively, with the amount of time away totaling 12 weeks per year. 

To go into more detail, depending on their needs, preferences, and situation, there are a few different types of FMLA leave that workers may qualify for (and opt to take), including: 

• FMLA: FMLA (also known as continuous FMLA) is a type of leave taken by employees for a consecutive period of time—up to 12 weeks. Your employees are eligible to take this type of leave to care for themselves or for an immediate family member. FMLA is considered continuous when your employee is absent for at least 3 consecutive days. 
• Intermittent FMLA: Intermittent leave is a more flexible option for employees that only need to take time off sporadically and/or nonconsecutively—for example, to attend a doctor's appointment or stay home due to a flare-up of a chronic condition. If someone wants to use intermittent FMLA to bond with their newborn or a newly adopted child, approval of their leave will be based on a mutual agreement between you and your employee. With intermittent FMLA, employees are eligible for the same amount of leave as continuous FMLA per calendar year (12 weeks). 
• Reduced schedule FMLA leave: If an employee is having trouble working all of their shifts because of a medical or family commitment, they might want to consider this type of intermittent leave. This allows employees to reduce the number of hours worked per day or per workweek, so they have more time to care for themselves or an ill family member. Like all the other types of FMLA, employees working a reduced schedule are eligible for the full 12 weeks of leave. As the employer, you'll just track the reduced hours—and put their reduced hours towards their total 12-week allowance. 

Examples of Intermittent FMLA

You know what intermittent leave is. You know how it works. Now, let's look at what this type of leave might look like in the workplace.

While there are a variety of reasons why an employee might need to take intermittent leave (or work a reduced schedule), generally, their reason will fall under one of the four major FMLA eligibility requirements. 

Let's take a look at each of those requirements—and an example of what intermittent leave might look like under that circumstance.  

Serious Health Conditions

Employees that are dealing with a serious health condition may use intermittent leave to take care of that condition.

For example, Jonah is a full-time employee who is dealing with chronic back pain—a qualifying serious health condition. He deals with irregular flare-ups—and, as a result, is sometimes in too much pain to come to work. 

Because this is an ongoing health issue, intermittent FMLA leave might be his best option. This will give Jonah the flexibility to stay home when his condition flares up or to take the time he needs for follow-up medical appointments. 

Caring for a Family Member

In addition to taking leave to care for their own health condition, employees can do so to care for an immediate family member with a serious health issue.

For example, Eva is a full-time employee who is also the primary caregiver for a parent receiving cancer treatment. Intermittent FMLA will give Eva flexibility in her schedule to care for her parent, whether she needs to work shorter days or take time off to bring them to medical appointments.

Bonding with a New Child

Employees can take intermittent FMLA after the birth of a child or the placement of an adopted or foster child as long as you approve it. In this case, the intermittent FMLA is intended for bonding purposes and must be used within 12 months of the birth or placement. 

For example, one of your employees, Bonnie, feels strongly about volunteering in the foster care system. She has an upcoming placement with a young child from a troubled background and may opt to take reduced schedule intermittent FMLA to have more time at home to bond with the child and help them acclimate to their new environment. 

She lets you know 30 days ahead of time, and you come up with a schedule that works for both of you. 

Military Caregiver

If your employee has a spouse, son, or parent who is a service member in the National Guard, Reserves, or Regular Armed Forces that is on or called to active duty, they're eligible for leave through FMLA. 

Alex is an employee with a wife in the armed forces—and she was recently called to active duty. As she'll be on duty, he doesn't have a parenting partner—and will be eligible to take intermittent leave to have extra time to care for their children.

(If Alex's wife was struggling with an illness or injury, he would be entitled to additional leave, as under military caregivers FMLA eligibility, they are eligible for up to 26 weeks of unpaid FMLA leave e per 12-month period.

Things to Keep in Mind as a Business Owner

As a business owner, it's important to make sure you understand intermittent FMLA—and that you're compliant and communicative with your employees, both when they submit any leave requests and while they're actively taking leave.

Let's take a look at some important things to keep in mind—and mistakes to avoid—when navigating intermittent leave in your business:

• Make sure you're familiar with eligibility and qualification requirements: Misclassifications of FMLA-protected leave, as well as gaps in communication and inaccurate information, can result in expensive legal verdicts and settlements—and owing damages or back pay to employees. 
• Keep track of all leave taken: It's your responsibility to keep track of your employees' FMLA leave to make sure they don't go over their hours—which can be more complex and time-consuming when they take their leave intermittently. If you have a human resources department, this can be a job for them. If you don't, consider hiring a human resources consultant to help you keep things organized. 
• Staff up: Make sure you have enough coverage to account for employees who are on intermittent leave. This could mean hiring a temporary or contract worker or offering overtime hours to other employees to help pick up the slack. 
• Don't retaliate: As a business owner, employees are protected under section 105 of the FMLA—and, as such, you're not allowed to penalize employees in any way when they take intermittent FMLA leave. For example, you can't take the fact that they took leave into consideration when you're going through a round of layoffs or overlook employees on FMLA-related leave for a promotion or pay raise. 
• Prevent fraud: Unfortunately, there may be some people that try to take advantage of FMLA protections. As an employer, do your due diligence by requiring medical certifications, looking for suspicious patterns of absences, and monitoring the employee's actual absences to make sure they match up with the originally requested leave. That being said, if an employee is taking FMLA leave, they are likely going through a challenging and/or stressful time. Showing compassion, empathy, and understanding as they navigate those challenges is essential.
• Know your rights: As an employer, you can almost never deny FMLA leave to your employees. However, intermittent leave requests for things that aren't medically necessary, like the adoption of a child or birth of a child, are subject to your own leave policies and approval—and you have the right to deny them. But again, when evaluating a leave request, take into account that your employee is requesting the leave for a reason—and try to do your best to accommodate.
  

Intermittent FMLA and Your Business

As a small business owner, you need to protect your business but also do right by your employees. Understanding intermittent FMLA is key in providing a safe workplace for your employees—and knowing what qualifies for FMLA leave will ensure that you're abiding by the law. 

Now that your questions about intermittent leave are answered, you should feel empowered to handle the next leave request that lands on your desk. And if you run into any issues or have additional questions? Consult the Department of Labor (DOL) website for FMLA regulations, leave entitlement, guidance, forms, fact sheets and other helpful information.