FMLA Intermittent Leave
Special issues concern FMLA leave entitlement for the birth or adoption of a child. The employee must conclude his or her leave within 12 months of the birth or placement. Leave taken to care for a newborn child or a newly adopted child does not require illness, but an employee may not take the leave on an intermittent or reduced leave schedule basis unless otherwise agreed upon by the employer.
For intermittent leave or leave on a reduced schedule, there must be a medical need (as distinguished from voluntary treatments and procedures) and it must be that such medical need can be best accommodated through an intermittent or reduced leave schedule.
There should be an attempt to schedule intermittent leave or leave on a reduced schedule so as not to disrupt a department's operations. A department may assign an employee to an alternative position with equivalent pay and benefits that better accommodate the employee's intermittent or reduced leave schedule.
Leave may be taken intermittently or on a reduced leave schedule under the following circumstances:
- If leave is taken after the birth or placement of a child for adoption or foster care, an employee may take the leave intermittently or on a reduced leave schedule only if the department agrees (see first question for more information). Needs of the employee and the department should be balanced to achieve a workable arrangement and maximum benefits for both.
If leave is for a serious health condition of a family member or for an employee's own serious health condition, leave may be taken intermittently or on a reduced leave schedule when medically necessary.
Intermittent leave is leave taken in separate blocks of time due to a single illness or injury and may include leave periods from an hour or more to several weeks. Examples would include leave taken on an occasional basis for medical appointments or leave taken several days at a time spread over a period of six months, such as for chemotherapy.
A reduced leave schedule reduces an employee's usual number of working hours per workweek, or hours per workday.
The department may require an employee to transfer temporarily to an available alternative position with equivalent pay and benefits or to a part-time job with the same hourly rate of pay and full-time benefits. Transfer to an alternative position may require compliance with any applicable Collective Bargaining Agreement, federal law (such as the ADA), and state law and may include altering an existing job to better accommodate the employee's need for intermittent or reduced leave.
Only the amount of leave actually taken may be counted toward the 12 weeks of leave (e.g., if an employee who normally works five days a week takes off one day, the employee uses eight (8) hours of FMLA leave; if a full-time employee who normally works 8-hour days, instead works 4-hour days under a reduced leave schedule, the employee uses 20 hours of FMLA leave each week). Where an employee normally works a part-time schedule or variable hours, the amount of leave is determined on a pro rata or proportional basis (e.g., if an employee who normally works 30 hours per week works only 20 hours a week under a reduced leave schedule, ten hours of FMLA leave for each week is used). If an employee's schedule varies from week to week, a weekly average of hours worked over the 12 months prior to the beginning of the leave period would be used to calculate the employee's normal workweek.