ABC’s of Leave Management: I is for Intermittent

January 8, 2019

I often think some of these topics are college level 101 that nobody will read, but then remind myself that every season, like college, there are new people to this industry. Also, like college, some people can use a refresher because this stuff isn’t simple.

Here’s a little 101, what is an intermittent leave? Although the FMLA really brought the term intermittent to our everyday lingo, the definition identified in 825.202 of the FMLA is not where your consideration ends. The FMLA identifies the absence as being taken in separate blocks of time. I have had organizations mistakenly believe that it is any absence of less than three consecutive days, which is not necessarily the case. Basically, it could be any absence request that was not a single block of time with no expected needs after the return to work. Therefore, your policies, process, and working knowledge need to take into consideration how intermittent leaves should be handled.

My next point bumps us out of the 101 realm. How do you track intermittent time? It depends. Under federal FMLA, the amount of time taken is the easy part, but it’s the amount of time available that can become very tricky. The factors involved are:

  • Does the employee have an exact schedule or does it fluctuate?
  • Is the employee exempt or non-exempt?
  • Do you, the employer, have solid records of both the hours an employee is entitled to work and the hours the employee has actually worked (not just been paid for) in the 12 months preceding the absence need?

Many employers believe that because their employees are scheduled to work a very clean 40 hour work week, that they are entitled to 12X40 = 480 hours, so if Johnny asks for 4 hours off, it is basic math of 480-4= 476 hours remaining. I’m not saying it can never be that simple, only that it rarely is. Things like overtime worked by hourly staff can throw that off. Exempt employees, where it is very common for them to work more than 40 hours, are to have their intermittent time based on what they work, not what they are scheduled to work. It’s less of an issue when absences are taken in full-day increments, as the employer has the ability to calculate it by 1/5 of a week. Breaking it down in hours or the fraction of a workweek is what will make that a stitch more complicated. It is up to the employer to either agree with the employee’s assertion of time worked or disprove it. It is not up to the employee to prove it if they claim they work an average of 46 hours per week.

Once you have figured out how much time an employee has available to take, you need to ensure you are informed on which absences may be taken in intermittent blocks of time, if there are any restrictions and if there are employer policy implications. Federal FMLA is relatively straight forward for the reasons intermittent time may be taken. However, if you have an employer with locations in multiple states, California as an example, employers may have modified their policy to be in line with the more generous state law, which entitled employees to use intermittent leave for bonding with a new child.

There are federal and state laws that allow for intermittent absences, as well as the ADA. Each one of these laws may add another consideration. The EEOC (Equal Employment Opportunity Commission) recognizes that this is not always easy to navigate, as the rules under the ADA are not nearly as clear cut as they are under the FMLA. It would be worth your time to scroll through the guidance provided here by the EEOC, particularly scrolling down to examples 19 and 20 for an understanding of how the ADA may play a part.

True statement that Intermittent Leave isn’t the sexiest subject line on the absence management social media circuit right now. Whether you’ve been rocking this absence management gig for years or you are just starting out, the topic of intermittent leave is not simple and should not be underestimated.