The Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. ("FMLA"), provides eligible employees of employers with 50 or more employees with up to twelve weeks of unpaid leave each year for one of the following purposes: (1) to care for a newborn or newly placed adopted or foster child; (2) to care for a close family member, e.g., spouse, son, daughter or parent with a serious health condition; or (3) to care for the employee''s own serious health condition. The FMLA guarantees the right of the employee to maintain health benefits during a protected leave and to return to the same position or to an equivalent one following the leave.
One of the most troubling issues under the FMLA is the requirement that employers grant "intermittent" leave. The Department of Labor regulations implementing the FMLA define intermittent leave as follows: "Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason."
Intermittent leave for medical treatment and/or recuperation can be predictable, as when used for weekly chemotherapy sessions, or it can be unpredictable, as when necessitated by sporadic, periodic and random flare-ups of serious health conditions.
For example, if an employee''s child develops a sinus condition triggering recurring asthma attacks, it may be necessary for the employee to use protected leave under the FMLA to care for the child in separate blocks of time, e.g., 1 or 2 days a week for a month, often without notice and without any predictable pattern as to when leave will be necessary.
It should be noted that intermittent leave to care for a newborn, newly adopted or newly placed child is not available unless the employer and the employee both agree.
The disruptive effect that intermittent leave can have on an employer''s business is obvious. As a concession to employers, the regulations permit an employer to temporarily transfer an employee using intermittent leave to an available alternative position where the employee''s periodic absences will be less disruptive. Some key points:
The temporary position need not have equivalent duties, but the pay and benefits must be equivalent irrespective of any difference in duties.
The employer may not use its right to transfer in such a way as to discourage leave taking or in retaliation for leave taking.
The employer can create a part-time position geared to the number of hours the employee can work while taking leave intermittently; however, the employee''s hourly wage rate and benefits must remain the same.
Thus, even if the company generally does not offer a certain benefit to part-time employees, it could not take that benefit away from an employee working part-time by virtue of intermittent FMLA leave.
However, benefits which are based on the number of hours worked may be proportionately reduced to reflect the number of hours being worked while on an intermittent leave.
After the leave, the employee must be restored to the same or equivalent job as the job held at the commencement of the leave. In this context, for a job to be considered "equivalent" it must have equivalent duties, as well as pay and benefits.
Only the amount of intermittent leave actually taken can be counted toward the twelve weeks of leave required by the Act. Thus, if an employee who works four, 10 hour days per week takes one day of intermittent leave, the employee has exhausted 1/4 of a week of intermittent leave. Likewise, if a part-time employee who usually works thirty hours a week misses ten hours, she has exhausted 1/3 of a week of leave entitlement.
With the above in mind, how should employers handle employee requests for intermittent leave under the FMLA? First, like any other request for leave under the FMLA, the employer should require the employee to provide a medical certification that intermittent leave is medically necessary under the circumstances. Although there are restrictions on an employer''s ability to request subsequent medical recertifications, the regulations permit requiring recertification when the employer receives information that "casts doubt" on the need for the leave, i.e., indicates abuse of leave time.
Second, the employer can and should require the employee seeking intermittent leave to attempt to schedule the leave so as not to disrupt the employer''s operations. Third, the employer should decide whether a temporary transfer is a viable option. Fourth, the employer should be certain to document and calculate each period of leave taken by the employee so that the employee''s twelve-week total of leave is not extended. Fifth, the employer must designate an employee''s request for intermittent leave as FMLA-qualifying and give notice of the designation to the employee, along with information on whether the leave will be paid or unpaid. Only one such notice is required for intermittent leave requests.
The parameters of intermittent leave are still evolving. As more employees take intermittent leave, a variety of issues will need resolution by the courts. In the meantime, employers should learn to recognize when a leave request actually is a request for intermittent leave under the FMLA.