Navigating Intermittent FMLA Leave

The Family and Medical Leave Act allows eligible employees to take up to 12 weeks of unpaid leave per 12 month period, for their own serious health condition or to care for a close family member with a serious health condition. Such leave can be taken continuously or intermittently as needed for episodic medical issues (i.e., flares of migraine headaches).

Your protections under the FMLA leave are triggered when you inform your employer that you need time off work due to your serious health condition or to take care of a family member with a serious health condition. Your employer will likely require a doctor to complete an FMLA certification form like this one, which will outline

  • whether you are taking FMLA leave on a continuous or intermittent basis,
  • the probable duration of your need for FMLA leave, and
  • if intermittent, the probable frequency of your intermittent leave

Intermittent leave is often unpredictable; an employee may not know that he or she will need to use their intermittent FMLA leave until shortly before he or she is due to be at work. The unpredictability of this leave can create a quagmire for both employees and employers to navigate. Below are some rights and obligations to be aware of when using intermittent FMLA to ensure all of your absences are protected.

1) You Must Follow Your Employer’s Reporting Policies
The most important thing to remember when using intermittent FMLA is:

*Follow all of your employer’s requirements for reporting absences. *

To keep track of employee FMLA leave, many employers outsource FMLA administration to third-party administrators, such as Sedgwick, Unum, or Cigna. Frequently, employers who use a third-party administrator require employees to use a two-step process to report intermittent FMLA leave:

  1. Reporting the absence to the employer via its regular call-in procedure; and
  2. Reporting the absence to the third-party administrator so it is recorded as FMLA leave.

Though these policies require employees to jump through an extra hoop to take FMLA leave, courts have generally found them to be permissible. Indeed, numerous courts have ruled against employees in FMLA claims when the employee failed to follow a two-step call-in procedure (for example, informing the employer but not the third-party administrator) and was terminated for excessive absences. Even though the absences were for FMLA-qualifying reasons, these claims failed because the employee failed to properly report the absences to the third-party administrator. In short, if your employer has an internal procedure for reporting FMLA absences, follow it.

As with all rules, there are exceptions. An employer’s reporting process could violate the FMLA if it is so burdensome or unreasonable as to prevent employees from taking FMLA leave. Additionally, you may not have to follow your employer’s policy if some exigent circumstance applies; for example, if your medical condition prevents you from following the policy.

2) You Do Not Need a Doctor’s Excuse or Return Clearance for Each Absence
Once your intermittent FMLA has been certified by a doctor, your employer may not require that you see a doctor each time you use intermittent FMLA. They also are not permitted to require a certification of fitness to return to duty for each absence.

The exception to this rule is if your employer believes your medical condition could create a safety concern. In such a case, your employer can request a certification of fitness to return to duty only once every 30 days. The employer must provide the employee advance notice that it will require certification of fitness to return to duty.

3) Your Employer Cannot Require You to Recertify Your FMLA Leave Each Time You Take Intermittent FMLA.
Similarly, your employer cannot require that your doctor recertify your FMLA leave after each absence. Generally, the employer may only request recertification every 30 days. However, if your original certification states that the duration of your need for FMLA will be longer than 30 days, your employer must wait until the end of that time period to request recertification. For example, if your doctor says you may need to take intermittent leave for a six week period, the employer must wait six weeks to request recertification.

If your certified FMLA is for a long-term or chronic medical condition lasting more than six months, the employer may request recertification no more than once every six months.

In rare circumstances, an employer can request recertification after 30 days. This includes when an employee requests an extension of leave, if circumstances have significantly changed (i.e. the employee is taking significantly more FMLA leave than the original certification described), or if the employer receives information that casts doubt on the validity of the leave (i.e., if an employee takes FMLA leave for a migraine headache but posts photos on Facebook of them attending a loud concert).

If you believe your employer is interfering with your rights under the FMLA or has retaliated against you for taking FMLA leave, please contact Hawks Quindel to explain your case. Our experienced employment attorneys may be able to help.

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Aaron Halstead