Managing intermittent family and medical leave (FML) can be challenging. We’ve answered the most frequently asked questions below to help you navigate the rules.
Q: Is an employer required to grant intermittent leave?
A: Intermittent FML must be granted in the following circumstances:
- When there is a need for continuing medical treatment
- For recovery from medical treatment or a serious health condition
- To provide care or psychological comfort to an immediate family member with a serious health condition
- For a qualifying exigency resulting from a family member’s call to active military duty
- To provide care for a family member who becomes ill or was seriously injured in the line of active military duty
Intermittent or reduced-schedule leave for the birth, adoption, or placement of a foster child is optional. An employer may choose to allow it, should document the choice in policy, and apply the rule consistently to all employees.
Q: How is intermittent leave counted?
A: Intermittent leave is tracked in days or hours, rather than in workweeks. Leave must be counted based on the smallest time increment used to record other forms of leave, as long as it’s one hour or less. An employer cannot require the employee to take more leave than necessary. Districts that require employees to use paid leave in half- or whole-day increments are prohibited from applying this to FML in half- or whole-day increments when less time is needed by the employee on intermittent leave. When an employee is using paid leave at the same time as FML, the district will need to adjust the method for tracking paid leave or manually record the FML in hourly increments.
Q: How is the amount of available intermittent leave calculated?
A: An employee is entitled to an equivalent of 12 workweeks of leave. Employees who regularly work five days per week are entitled to 60 days of leave. All hours normally worked, including overtime, must be taken into account when calculating the number of hours available. For example, a custodian who normally works 10 hours per day would be entitled to 600 hours of intermittent leave.
Q: Who determines the intermittent leave schedule?
A: The frequency and duration of intermittent leave is based on the information provided by the health care provider in the medical certification. When leave is needed due to a chronic reoccurring condition (e.g., migraines) the schedule may be unpredictable. Employees are expected to consult with the employer and make a reasonable effort to place planned medical treatment and other qualified appointments on a schedule that best suits the needs of both the employer and employee. If there’s a medical necessity for a particular treatment schedule as determined by the health care provider, the district must grant the intermittent or reduced leave schedule.
Q: How often can medical certification for intermittent leave be required?
A: In most situations, an employer may not require recertification more often than every 30 days. If the original certification indicates the condition will continue for a period of more than 30 days, the employer must wait until the time elapses to require another certification. The employer doesn’t have to wait for 30 days to request recertification in any of the following circumstances:
- The original certification was for fewer than 30 days
- The employee asks for an extension of leave
- The circumstances in the original certification change significantly
- The employer receives information that casts doubt on the employee’s stated reason for the absence or the continuing validity of the certification
If the original certification indicates the employee will need intermittent or reduced schedule leave for a period in excess of six months, the employee may request recertification every six months.
Q: Can the employee be required to provide a doctor’s note each time intermittent leave is taken?
A: The employer is not permitted to require medical certification each time intermittent leave is taken. The initial medical certification should outline the estimated schedule for which leave will be needed. The employer must rely on the employee to record FML on leave reporting forms or automated systems so the amount of time taken can be tracked.
Q: What can an employer do if an employee is taking more time off than outlined in the certification?
A: The employer can seek clarification about the medical certification’s estimated frequency from the health care provider and ask if the absences are medically necessary. The FMLA regulations allow an employer to provide the health care provider with a record of the employee’s absences and ask if this aligns with the serious health condition. Remember, only HR, a leave administrator, another health care provider, or administrator other than the employee’s supervisor may contact the doctor. When circumstances change, such as requiring more leave than initially stated, the employer can ask for recertification.
Q: Can fitness-for-duty be required each time intermittent leave is taken?
A: An employer is prohibited from requiring fitness-for-duty certification for each absence taken on an intermittent or reduced leave schedule. Fitness-for-duty may be required for such absences up to once every 30 days if reasonable safety concerns exist regarding the employee’s ability to perform his or her duties, based on the serious health condition for which the employee took such leave. If this is required, the employer must inform the employee of the requirement at the same time it issues the designation notice. The employer also must provide the employee with a copy of the job description if the doctor is required to comment on the employee’s ability to perform the essential job functions.
Q: Can an employee be transferred to an alternative position to better accommodate the need for intermittent leave?
A: An employer may require an employee to transfer to an alternative positon where the need for leave is foreseeable because of planned medical treatment. If the need for intermittent leave is because of a chronic reoccurring condition that isn’t predictable, the transfer provision would not apply. Limitations for transfer to another position are:
- The transfer only may occur during the period of time the intermittent or reduced leave schedule is required.
- The transfer may include altering an existing job to better accommodate the employee’s need for intermittent or reduced leave schedule.
- The alternate position does not have to have equivalent duties, but the pay and benefits must be the same as the employee’s regular assignment.
- Special rules for instructional employees apply (see question below).
Q: Is a district required to grant an instructional employee intermittent leave?
A: The district must grant intermittent or reduced-schedule leave to an instructional employee because of a medical necessity. If the leave for a planned medical treatment will be more than 20 percent of the total number of working days over the period the leave extends, the district may require the instructional employee to choose between the following:
- Temporarily transferring to an alternate positon with the same pay and benefits that would better accommodate the need for leave
- Taking leave as one block of time for the duration of the planned treatment
The district cannot force the employee to take the leave for planned medical treatment as a block of time if it does not offer the employee an opportunity to transfer to an alternate position.
Instructional employees who expect to be absent 20 percent or less during the duration of the treatments cannot be subject to transfer to an alternate position.