In the 10 years since its enactment, most employers and employees have become generally familiar with the requirement of the Family and Medical Leave Act (FMLA) that covered employers must provide eligible employees with up to 12 weeks of unpaid leave and health benefit continuation in any 12-month period for specified purposes. In very general terms, a covered employer is one with at least 50 employees. An eligible employee is one who has been employed for at least 12 months, worked at least 1,250 hours in the preceding 12 months, and is employed at an employer worksite where there are at least 75 employees within a 75-mile radius. Qualifying reasons for the leave include the birth or adoption of the employee’s child; care for a spouse, child or parent with a serious health condition; the employee’s own serious health condition; certain military exigencies; and care for injured service members. While it can be further complicated by the interplay between the FMLA and other federal and state statues (as, for example, its interplay with the Americans with Disabilities Act previously discussed in this space), administering an employee’s request for full-time leave is a relatively straightforward proposition.
Much more difficult to understand and administer can be an employee’s entitlement to use some or all of the FMLA leave entitlement to work a reduced schedule or to maintain a normal schedule with intermittent absences. There are both similarities and important differences between reduced schedule and intermittent leaves and between those types of leaves and full-time FMLA leave.
First, unlike full-time leave, reduced schedule or intermittent leave may not be used where the reason for the leave is the birth or adoption of the employee’s child (as distinct from the need to care for a newborn child with a serious health condition), unless the employer agrees.
Second, where the reduced schedule or intermittent leave is requested because of the employee’s own serious health condition or to care for another with such a condition, it is subject to the same notice and medical certification requirements (including the availability of second and third opinions) as a full-time leave. The notice requirement means that, where the need for the leave is foreseeable, the employee must provide the employer with reasonable (presumptively 30 days) notice and, where the need is not foreseeable, as much notice as reasonably possible. In the case of leave to care for another, it is important to recognize that there must be appropriate medical certification not only of the other person’s serious health condition, but also of the necessity of the employee’s reduced schedule or intermittent absences to provide care.
Third, while the statutory leave entitlement is stated in terms of “12 weeks,” reduced schedule or intermittent leave requires that the 12 weeks be translated into smaller increments, which can be no longer than one hour or the smallest increment in which the employer permits employees to take other leaves or personal time, whichever is less. Generally, the simplest way to do this is to use the employee’s regularly-scheduled weekly work hours as the proxy for a week. Once the appropriate increment is identified, only the actual time by which the regular schedule is reduced or the actual time taken intermittently may be counted against the overall leave entitlement.
Fourth, unlike full-time leave incident to birth or adoption, and like full-time leave for an employee’s own serious health condition or to care for another, the terms of reduced schedule and intermittent leave are subject to negotiation between employer and employee and must reflect a reasonable effort to avoid undue disruption of the employer’s business. In this regard, where the need for reduced schedule or intermittent leave is foreseeable, the employer may require the employee to transfer for its duration to another position with equivalent pay and benefits, but which better accommodates the reduced schedule or recurring leave than the employee’s regular position.
It should be clear from the foregoing discussion what reduced schedule or intermittent FMLA leave is and, more importantly, what it is not. It is a specific adjustment to the employee’s normal work schedule for a limited period of time and with reasonable notice to the employer to accommodate the employee’s own medically-certified serious health condition or medically-certified need to care for a covered relative with such a condition while creating the minimum possible disruption to the employer’s business. What it clearly is not is a general license to ignore the employer’s otherwise-applicable attendance and scheduling policies or an excuse for unscheduled lateness and absences.