Six keys to managing FMLA intermittent leave 

February 19, 2024

Generally speaking, the Family and Medical Leave Act (FMLA) allows employees to take 12 weeks of unpaid, job-protected leave per year to care for themselves or a covered family member with a serious health condition, to deal with issues related to the deployment of a covered family member in the military, known as a qualifying exigency, or to bond with a new child. The FMLA also provides for up to 26 weeks of leave per year to care for a defined family member who is also a covered service member with a serious illness or injury. (Check out our FMLA Handbook for more complete details about the law and who it covers.) FMLA leave can be taken all at once or in smaller increments, known as intermittent leave.

Employees often use intermittent leave to deal with flare-ups of chronic health conditions — such as migraines or asthma — or to receive ongoing medical treatment. The law does not require employers to offer intermittent leave for bonding with a new child, but many opt to do so.

Managing intermittent leave requires very detailed tracking and record keeping to ensure policies are applied consistently and in compliance with the law. Not only do employers need to track an employee’s intermittent leave usage in increments down to the minute, they also need to ensure and document that:

Getting complete information at the outset and setting clear expectations before an employee takes leave can prevent problems down the road.

For example, medical certifications can be an effective means for employers to prevent the misuse of FMLA, so employers should insist on certification at every appropriate opportunity, along with the proper notices. Following up on incomplete or inadequate certification is also important to maintain compliance and provide crucial information regarding how and when an employee needs leave.

Once the leave has been approved, schedule an “expectations” meeting with the employee. At this meeting, a member of the HR staff would walk the employee through the FMLA policy and give them a written copy to take home.

Employers are understandably sensitive when it comes to intermittent leave. They want to respect the privacy of their employees during a difficult time and not pry into health or family life.

“There’s often a concern about ‘What can we ask of employees? Can we really delve into medical conditions? Isn’t that protected under HIPAA’?” says Jeff Nowak, shareholder at Littler Mendelson and author of the FMLA Insights blog.

Despite these legitimate concerns, he says, employers do have the right to be reasonably informed about why an employee will be absent.

“Whether the reason is for a medical issue or for a flat tire or because they have to pick their kid up from school, you have a right to know why an employee can’t report to work,” Nowak says. “Don’t be afraid to ask these basic questions.”

With these policies and procedures in place, misuse of intermittent leave is less likely. Nonetheless, employers should remain alert but prudent.

Consider avoiding recertification — a process that requires the employee to recertify that leave is necessary — unless the behavior raises objective concerns and is clearly documented.

“Be wary of recertifying in an instance where someone has been absent one occasion over their allotted frequency — for instance, they are approved for two days, but they are absent for three,” says Nowak.

“Employers should identify some other objective basis — for instance, a pattern of absences on Mondays and Fridays — before they recertify.”

To take any disciplinary action for the fraudulent use of FMLA, employers must first conduct a thorough and fair investigation. These investigations are crucial to avoiding unnecessary terminations, as well as possible lawsuits.