Your guide to navigating FMLA intermittent leave

Anyone who’s ever managed leave knows that people take leave in many different ways—and it’s often not in a single, continuous period. This is known as intermittent leave, a type of leave employers struggle to administer because of the complexity and special FMLA rules that apply. Navigating complexity is our middle name, so we’ve put together this guide to help you understand those rules and feel more empowered to manage these important leave cases.

💡Pro tip: Get guidance on employee eligibility rules and what types of conditions apply for FMLA with our FMLA compliance checklist here.

What is FMLA intermittent leave?

A lot of leave cases are lumped into the intermittent leave category but there are some significant nuances that are important to call out. The TL;DR is that intermittent FMLA leave is any FMLA leave taken in separate blocks of time due to a single qualifying reason (this is governed by 29 CFR 825.202(a)). They can pose unique challenges for employers because the intermittent absence, regardless of duration, is legally protected regardless of the operational hardship it may pose. Employers often separate intermittent leave into three categories:

1. Planned intermittent leave. This usually involves planned medical treatments or caregiver obligations. Employees can schedule the time off and work with their employers to address operational needs arising from the absences. This type of intermittent leave is fairly common.

2. Unplanned intermittent leave. This type of intermittent leave often varies in duration, and arises when an employee’s or their family member’s medical condition flares up and they are unable to work as planned. This is where challenges arise, as the name suggests, the absence is unplanned.

3. Reduced leave schedules. This is when an employee takes FMLA leave and works fewer hours than usual, but in a consistent, predictable schedule that will continue for an agreed upon duration. Here, an employee may move from full-time to part-time for a period, but they are still treated as a full-time employee for health care benefits and potentially other benefit programs. 
   
   For example, an employee will return to work following surgery for a limited, and gradually increasing work schedule (e.g., 20 hours for the first month following surgery, 30 hours the second month, 35 hours the fourth month, and then back full time).

For simplicity, we’ll refer to it as intermittent leave from here on out, but the advice can apply for all three types described above.

Reasons for intermittent leave

Not all FMLA leave can be taken intermittently, so it’s crucial for employers to understand which reasons for leave do qualify. Employees can take intermittent leave for their own medical condition or to care for a qualifying family member—these two reasons must be “medically necessary,” which is documented with a serious health condition form. 

Some example reasons for leave:

• Chronic health condition flare-ups (IBS, arthritis)
• Mental health episodes (depression, anxiety attack)
• Ongoing conditions that require medical treatment 2+ times a year (squamous cell removal, cancer treatment follow-up care)
• Attending medical appointments for an ongoing condition (physical therapy, blood transfusion)

Intermittent leave obligations, nuances, and rights

Regardless of whether someone is taking a continuous, intermittent, or reduced schedule FMLA leave, many components and requirements are the same. However, there are a few nuances particular to intermittent leave. Here’s a simplified breakdown:

Obligations regardless of leave type

• Leave-takers must be eligible for FMLA:
  1. The employee must work for a covered employer.
  2. The employee must work at a worksite with at least 50 employees within 75 miles.
  3. The employee has worked for their employer for at least 12 months (and have logged 1,250 work hours during the 12 months immediately preceding their leave start date). 

• Employees can take a maximum of 12 workweeks of FMLA leave in a 12-month period (except for military caregiver leave).
• Medical and caregiver leaves generally should provide medical certifications from a healthcare provider to demonstrate the need for it.
• Foreseeable leave should be requested at least 30 days in advance when possible, and ASAP for emergencies or sudden changes.
• Employers need to clearly communicate how employees can request FMLA leave (e.g., requesting leave in Cocoon).

Nuances particular to intermittent leave

• Employers have the right to request additional supporting medical documentation at certain intervals after an intermittent medical or caregiver leave starts. For example, if an employee’s doctor initially estimated six weeks for recovery, but after that time they request one day a week for physical therapy for two months, their employer could request this documentation from the healthcare provider at the end of the first six weeks, and again after the two months of physical therapy.
• Under FMLA, employees are not permitted to take intermittent leave for child bonding unless they clear it with their employer. There are also state leave laws where intermittent leave may be permitted for some or all qualifying leave types.
• Employees should make a reasonable effort to schedule treatments so as to not unduly disrupt employer’s operations.

Employees have the right to:

• Take intermittent leave (when medically necessary) in the smallest duration an employer accounts for in its payroll system (e.g. 15 minutes). 
• Arrive or depart early or late to work when medically necessary due to a qualifying serious health condition. 
• Have their job restored regardless of the hardship their intermittent absence caused to the business or other employees.
• Use their accrued paid time off (PTO) during periods of completely unpaid FMLA leave.

Employers have the right to:

• Require employees take FMLA intermittent leave in minimum increments, as long as that increment isn’t greater than one hour and the employee is not required to work.
• Request additional supporting medical documentation from an employee and their healthcare provider, like for:some text
  • Planned medical treatment/appointment dates and times.
  • Estimates of the frequency and duration of anticipated absences due to flare-ups of a condition.
  • Recommended leave schedules, clarifying the specific schedule an employee could work, and the duration the employee would need to work on that schedule.
  • Recertification if original documentation varies substantially from actual leave usage and needs, or they suspect there may be potential fraud or misuse of leave rights
• Require employees to request an intermittent leave like they would any other leave, and that when possible, they should call in an absence in a certain time frame before a scheduled shift.

Additional intermittent leave FAQs

Intermittent leave intersects and diverges with things like continuous leave and PTO, which can prompt some of these FAQs.

Can employers allow employees to use paid time off (PTO) instead of FMLA-qualifying intermittent leave? 

No. Under the FMLA, once an employer knows that a request for PTO is for an FMLA-qualifying event, an employer must designate the absence as FMLA-qualifying. From there the employee can elect to use PTO to cover any unpaid portion of the leave. Ultimately, this is for the employee’s benefit to be protected by the FMLA and to avoid disciplinary actions if their employer perceives “absenteeism” versus a legally-protected absence.

Can employees use our company’s paid medical leave instead of FMLA/state leave laws for intermittent leave?

No. Again, if employers know an employee is absent for an FMLA-qualifying reason, they must designate that absence as FMLA-qualifying. Most employers run company medical leaves concurrently with FMLA or other statutory leaves to minimize the period of time an employee is away from work, but employers could run their own medical leave policy after FMLA is exhausted (aka “stacking”).  

Also, employers should ensure that their company leaves are truly overlapping with FMLA leaves. Employers need to verify what conditions and situations their company’s leave policies do and do not address. For example, an employer’s leave policy might cover leave for family members that are not covered under FMLA (e.g., domestic partners, grandparents, and grandchildren). If employers feel unsure about any of this, we recommend going in-depth with our FMLA and parental leave checklists. Even if there’s already a policy in place, these checklists offer questions and considerations for situations employers might face with intermittent leave to help plan ahead.

Can you retroactively designate past intermittent leaves as FMLA?

It depends. Employers can retroactively designate FMLA leave if they send designations within the time frame required by law—which is within five business days of receiving all of the supporting documentation that they require to determine if the leave was FMLA-qualifying. If an employer takes longer than five days, they can still retroactively designate the absences as FMLA-qualifying, just as long as this doesn’t unfairly prejudice and impact the employee.

For example, if an employee was expecting to save their FMLA for the birth of their child, but it was retroactively designated towards a caregiver leave, they could argue that they would have pursued other options to care for their family member had they known about the designation. 

Another example: if an employee was absent intermittently for 10 days in September, but an employer only received a complete and sufficient medical certification supporting the need for intermittent leave on September 30th, they could retroactively designate all of the September absences as FMLA-qualifying. 

The bottom line

Navigating the complexities of intermittent leave is crucial for both employers and employees. By understanding its nuances and leveraging tools like Cocoon, organizations can ensure compliance while providing the flexibility that employees need during challenging times. A well-managed intermittent leave not only supports the health and well-being of employees but also maintains the smooth operation of the business. With the right approach and resources, intermittent leave can be a win-win situation, fostering a supportive workplace culture.