Understanding and applying medical leave laws can be a formidable task. It becomes even more difficult when an employer needs to respond to an intermittent Family and Medical Leave Act (FMLA) request and grapple with how to apply FMLA leave to individual situations. Though challenging, staying compliant with the FMLA is crucial for mitigating an employer’s legal risk.
FMLA was meant to streamline and federalize laws relating to employees’ medical leave, but it can end up being an administrative struggle for the most seasoned HR professional. One specific request under the FMLA umbrella that can be challenging is intermittent FMLA Leave.
An HR professional may ask themselves the following question: Does an employee have to take leave all at once, or can it be taken periodically or to reduce the employee’s schedule? The answer is that when it is medically necessary, employees may take FMLA leave intermittently. It may take the form of taking leave in separate blocks of time for a single qualifying reason or on a reduced leave schedule, reducing the employee’s usual weekly or daily work schedule.
Intermittent FMLA leave is available for all the same reasons as regular FMLA leave. However, employees may use FMLA leave intermittently or on a reduced leave schedule for bonding with a newborn or newly placed child only if the employee and employer agree and the employee’s bonding time with the newborn or newly placed child concludes within 12 months of the birth or placement of the child.
Once a determination is made that intermittent FMLA leave will be given to an employee, the employer then faces the daunting task of how to calculate it. As explained in this whitepaper, Employers Council recommends two approaches, outlined below, when calculating intermittent leave. If the employee works a consistent number of hours per week throughout the year, choose the “Fraction of a Regular Workweek” approach. If the employee works a variable schedule each week, choose the “Fraction of an Average Workweek” approach.
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Fraction of a Regular Workweek Approach: The formula for this approach divides the number of hours the employee takes in FMLA leave during the workweek by the number of hours the employee regularly works during the workweek. This calculation yields the portion of a regular workweek the employee used for FMLA.
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Fraction of an Average Workweek Approach: This formula should be used when an employee works a variable schedule each week and does not have a regular workweek. The employer is required to calculate an average workweek by determining the average number of hours the employee worked during the 12 months prior to the start of FMLA leave. This formula divides the number of hours the employee takes in FMLA leave during the workweek by the employee’s average weekly hours worked during the 12 months prior to start of FMLA leave.
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Transfer to an Alternative Position: Another wrinkle that may naturally flow from an intermittent FMLA leave request is the option to transfer the employee temporarily to an alternative job while on intermittent FMLA leave. If an employee needs intermittent leave that is foreseeable based on planned medical treatment for the employee, family, or a covered servicemember, the employer may require the employee to transfer temporarily, during the period that the intermittent or reduced leave schedule is required, to an available alternative position for which the employee is qualified. The alternative position must have equivalent pay and benefits, but it is not required that the alternative position have equivalent duties. When the transferred employee no longer needs to continue on leave, they must be placed in the same or equivalent job as the one they held when they went on FMLA leave.
Though flexible and employee friendly, intermittent FMLA leave potentially presents additional administrative headaches for employers. The best way for an employer to comply with intermittent FMLA requests is to ensure that HR professionals stay knowledgeable of FMLA rules and regulations and establish relevant policies that comply with the law.
This article has addressed a few of the salient issues when handling intermittent FMLA requests, but there will likely be other issues for employers to consider that are connected with FMLA leave. This whitepaper provides an overview of the FMLA, and Employers Council offers trainings on the Act for HR professionals. If you need assistance understanding how FMLA leave applies in various situations, contact Employers Council. You can also learn more about medical leave laws in our whitepapers collection.
Brandon Garrett is an employment law staff attorney for Employers Council.