FMLA - Intermittent Leave Requirements

Excerpt About The FMLA's Intermittent Leave Rules

The following is excerpted from our FMLA Training & Certification Program

What Is FMLA Intermittent Leave?

FMLA Intermittent leave means leave taken in separate blocks of time due to a single FMLA-qualifying reason.

Increments of Time

When FMLA leave is taken on a reduced schedule or intermittent leave basis, the employer must account for the leave using an increment no greater than the shortest period of time the employer uses to account for use of other forms of leave provided (1) that it is not greater than one hour, and (2) the amount charged against the employee's FMLA allotment cannot be more than the actual leave taken. For example, if the employee needs two hours to transport his parent to and from the doctor's office for an FMLA-qualifying medical need, the employer cannot charge the employee four hours against his or her FMLA entitlement.
Example: Acme Widget Company employer accounts for the use of annual leave in increments of one hour and the use of sick leave in increments of one-half hour. Jim works for Acme and suffers from asthma. On Wednesday, Jim has an asthma attack that makes it impossible for him to perform at least one of the essential functions of his job for 35 minutes. This is a serious health condition (chronic condition requiring periodic treatment from a medical provider) and is FMLA-qualifying. Acme can count Jim's time away from his work station as FMLA leave. It cannot require more FMLA leave than is necessary to address his particular circumstances, so it cannot charge him, say, two hours or four hours of FMLA time. Acme can charge Jim for 35 minutes of intermittent FMLA leave for this "absence".
Alternative Position

When an employee entitled to leave under the Family and Medical Leave Act of 1993 (FMLA) needs intermittent leave or leave on a reduced schedule due to a serious health condition (employee's own or that of a family member) or serious injury or illness of a covered servicemember or former servicemember, the employer may require the employee transfer temporarily, during the period for which the leave is needed, to an alternative position that better accommodates the absences. The same rule applies if the employer agrees to an intermittent leave or leave on a reduced schedule for the birth of a child, adoption of a child, or foster placement of a child. Military exigency leave is not included.

Certain restrictions apply with regard to the employer placing the employee in the alternative position:
  • The alternative position must have equivalent pay and benefits, but it need not have equivalent duties
  • The alternative position must be one for which the employee is qualified
  • The employer may prorate accrued benefits, if benefits are based on hours worked, however, if the employee transfers to a part time job that ordinarily does not qualify for benefits, the employee would not lose such benefits
  • The employer may alter an existing job to better accommodate the employee's need for intermittent or reduced schedule leave, or the employer may increase the pay and benefits of an existing alternative position so as to make the position "equivalent" to the pay and benefits of the employee's regular job
  • The employer may not transfer the employee to an alternative position in order to discourage the employee from taking leave or otherwise create a hardship for the employee. For example, a white-collar worker should not be assigned a day laborer's job, nor should an employee be unilaterally assigned to work a different shift or at a location a significant distance away from the normal job location
  • Once the need for intermittent leave or reduced schedule leave is over, the employee must be placed in the same or equivalent as the job he or she had at the time the FMLA leave commenced
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