Managing FMLA Intermittent Leave

Intermittent FMLA leave is one of the most challenging aspects of leave administration. Unlike a block of continuous leave, intermittent leave is taken in separate periods of time for a single qualifying reason. Managing it requires careful tracking, clear communication, and a solid understanding of employer rights.

When Intermittent Leave Applies

Under the Family and Medical Leave Act, eligible employees may take intermittent leave for:

• Their own serious health condition when medically necessary (for example, recurring treatments like chemotherapy or dialysis)
• To care for a family member with a serious health condition when medically necessary
• Any qualifying exigency arising from a family member's military service

Intermittent leave for the birth or placement of a child is only available if the employer agrees to it. You are not required to grant intermittent leave for bonding purposes.

Employer Rights and Tools

Employers have several tools to manage intermittent leave effectively:

• Medical certification: You may require a complete and sufficient medical certification from the employee's healthcare provider, including the expected frequency and duration of episodes
• Recertification: You may request recertification every 30 days if leave is being taken, or every six months in connection with an absence
• Second and third opinions: If you have reason to doubt the certification, you may require a second opinion at your expense. If the first and second opinions conflict, a third opinion from a mutually agreed-upon provider is final and binding.
• Temporary transfer: You may temporarily transfer an employee to an equivalent position that better accommodates intermittent leave
• Fitness-for-duty certification: You may require a fitness-for-duty certificate each time the employee returns from intermittent leave if you have a uniformly applied policy

Tracking and Documentation

Accurate tracking is essential for managing intermittent leave:

• Track all FMLA leave usage against the employee's 12-week (or 26-week for military caregiver leave) entitlement
• Record leave in increments no greater than the shortest period of time your payroll system uses to account for absences, provided it is one hour or less
• Maintain records of all certifications, recertifications, and correspondence
• Document any pattern of leave that raises concerns about potential abuse

Addressing Suspected Abuse

If you suspect an employee is abusing intermittent leave, there are proper and improper ways to respond:

Permissible actions:

• Request recertification when circumstances have changed or you receive information casting doubt on the reason for leave
• Contact the healthcare provider directly (through HR, not the employee's manager) to clarify or authenticate a certification
• Require employees to follow your normal call-in procedures for reporting absences
• Discipline an employee for failing to follow call-in procedures, as long as you do not count FMLA absences against them

Actions to avoid:

• Do not penalize employees for using FMLA leave
• Do not require employees to find their own replacement before taking leave
• Do not contact the healthcare provider through the employee's supervisor
• Do not deny leave while a certification is pending if the employee has provided notice

Practical Tips for Smooth Administration

• Designate a specific person or team to handle all FMLA administration
• Use a consistent system for tracking leave balances
• Communicate regularly with employees on intermittent leave about their remaining entitlement
• Train supervisors on FMLA basics so they do not inadvertently interfere with leave rights
• Review your FMLA policy and procedures annually