Most employees take leave under the Family and Medical Leave Act (FMLA) in continuous blocks of time. But not all health conditions require an employee to be absent for weeks at a time.

Some conditions are episodic in nature, like epilepsy, migraine headaches, multiple sclerosis or Crohn’s disease, to name just a few. Some medical treatments, such as chemotherapy, take place periodically. Employees with these types of serious health conditions may need FMLA leave occasionally rather than in a single continuous block of time. This is called intermittent FMLA leave — leave taken in separate blocks of time for a single qualifying reason.

Similarly, employees recovering from an illness or a surgical procedure may not be able to work a full day upon their initial return to work. Under the FMLA, such employees would be entitled to a reduced schedule leave — a temporary reduction in the number of hours that an employee works during the week.

The FMLA requires employers to grant requests for intermittent or reduced schedule leave when they are medically necessary. To learn the ins and outs of granting and managing intermittent and reduced schedule FMLA leave, read on. 

Background

The federal Family and Medical Leave Act (FMLA) requires employers to provide employees with 12 weeks of unpaid but job-protected leave each year for qualifying situations, including for the birth or adoption of a child, the employee’s own serious health condition or for an employee to care for an immediate family member with a serious health condition.

Understanding Intermittent Leave

The FMLA regulations define intermittent leave as “FMLA leave taken in separate blocks of time due to a single qualifying reason.” Intermittent leave may be needed because the nature of the employee’s illness is episodic. In addition to epilepsy and the other conditions named above, episodic illnesses include – but are hardly limited to – diabetes, asthma, cardiac arrythmias, and seizures. Intermittent leave may also be needed because the treatment of an employee’s serious health condition is episodic, as the need for dialysis is, to take but one example.

Understanding Reduced Schedule Leave

The FMLA regulations define reduced schedule leave as “a leave schedule that reduces an employee’s usual number of working hours per workweek, or hours per workday. A reduced leave schedule is a change in the employee’s schedule for a period of time, normally from full-time to part-time.” Reduced schedule leave is usually taken when an employee is recovering from a serious health condition and is unable to work full time. Employees who need FMLA leave for the birth or adoption of a child may request to take FMLA leave on a reduced schedule basis (that is, to work part-time for longer than twelve weeks rather than taking full-time FMLA leave and returning to work full-time at the end of twelve weeks). Whether to grant reduced schedule leave for the birth or adoption of a child is within the employer’s sole discretion. It is not a right.

How to Know if Intermittent or Reduced Schedule Leave is Appropriate

Intermittent leave and reduced schedule leave are two distinct variations of FMLA leave. They are  is required only when such leave best accommodates the serious health condition of an employee or their family member. In other words, intermittent leave or reduced schedule leave must be medically necessary for an employee to be entitled to them. The need for intermittent or reduced schedule leave must be indicated on the FMLA medical certification, either Form WH-381E (for the employee’s own serious health condition) or Form WH-381F (for the family member) on page 3, Section II, Part B. The employer’s approval of FMLA leave on an intermittent or reduced schedule basis must be indicated on the Designation Notice, Form WH-382. When the need for intermittent or reduced schedule leave is foreseeable based upon a planned course of medical treatment, the regulations direct the employer and employee to work out a treatment schedule that does not unduly disrupt the employer’s operations, subject to the approval of the medical provider.

Recording FMLA Leave

The FMLA regulations require employers to record both intermittent and reduced schedule leave using the shortest period of time that it uses to account for other forms of leave such as sick, vacation, and personal leave. The period of time used to account for intermittent or reduced schedule leave, however, cannot be greater than in 1-hour increments. An employer also may not require an employee to take more time off than is necessary to accommodate the need for the intermittent or reduced schedule leave. For example, if an employee needs to be away from work for only two hours a day, the employer may not require the employee to take a half-day off.

Measuring the Amount of FMLA Leave Taken

An employee is entitled to twelve weeks of FMLA leave. That makes the workweek the basis of FMLA leave. See here. For example,

• where an employee who normally works five days a week begins full-time FMLA leave on a Monday and returns three weeks and three days later on a Thursday, he will have used three and three-fifths weeks of FMLA leave;
• if a full-time employee who would otherwise work eight-hour days works four-hour days under a reduced leave schedule, she will use ½ a week of FMLA leave each week;
• an employee who regularly works 30 hours per week but works only 20 hours a week under a reduced leave schedule uses 1/3 of a week of FMLA leave each week.

How Many Hours Equal Twelve Weeks of Leave?

There is generally no need to express an employee’s entitlement to 12 weeks of reduced schedule leave in hours. The reduced schedule is easily understood in terms of a percentage of the workweek. Where an employee takes an instance of intermittent leave in increments of a full workday, it is easy to know how much FMLA leave an employee has used. In a five-day workweek, one workday will be 1/5 of a week of FMLA. A half day would be 1/10 of a week. But the circumstances that require intermittent leave by their very nature do not always make for such neat calculations. Employees on intermittent leave may take three hours here, five hours there, and on another occasion, a day followed by a part-day. In these situations, it makes more sense to record an employee’s FMLA leave in increments of an hour (or less if appropriate).

The regulations emphasize that when an employer does record FMLA leave in hours, the employer must be sure that it (or its timekeeping and payroll software) does so proportionately. Because leave is based on workweeks, employees who regularly works a 35-hour workweek will be entitled to fewer hours of FMLA leave than an employee who regularly works a 40-hour workweek. For example, the employee who works a 40-hour workweek will be entitled to (40 hours x 12 weeks) or 480 hours of FMLA leave. Her counterpart who works a 35-hour workweek will only be entitled to (35 hours x 12 weeks) or 420 hours of FMLA leave. The conversion into FMLA hours must be based on the number of hours that the employee is regularly scheduled to work.

Workweeks of Varying Hours

If an employee’s schedule varies from week to week to such an extent that an employer is unable to determine with any certainty how many hours the employee would have worked if they were not on FMLA leave, then the employer should use a weekly average of the hours the employee had been scheduled to work over the 12 months prior to the start of the FMLA leave period. The regulations specify that this calculation must include any hours for which the employee took leave of any type. The calculation of the number of hours of FMLA leave available to the employee would then proceed as outlined above. For example, if an employee’s weekly average turned out to be 46 hours per week, then the employee would be entitled to (46 hours x 12 weeks) for a total of 552 hours of FMLA leave.

Mandatory and Voluntary Overtime

The regulations permit employers to count overtime hours that an employee would have been required to work as hours of FMLA leave that count against the employee’s 12-week entitlement. Here’s an example from the regulation. A nonexempt employee who would normally be required to work for 48 hours each week (that is, eight hours overtime), is currently unable to work more than 40 hours because of their serious health condition. That employee would then use eight hours of FMLA leave out of the 48-hour workweek, or one-sixth (1/6) of a week of FMLA leave. But where overtime is voluntary the story is different. Voluntary overtime hours that an employee does not work due to an FMLA-qualifying reason may not be counted against the employee’s FMLA leave entitlement.