Home » Publications » Alerts » Final FMLA Regulations Effective 1/16/09 Require Employer Action » Intermittent Leave

Intermittent Leave

Release Date: January 22, 2009

The regulations have changed the employer?s responsibilities relative to provision of intermittent leave. Under the new regulations an employer must account for intermittent or reduced schedule leave using an increment no greater than the shortest period of time that the employer uses to account for other forms of leave, provided it is not greater than one hour. In this regard, the new regulations clarify that an employer is not required to account for FMLA leave in the shortest increments possible simply because their payroll systems are capable of doing so.

The general rule is still that an employee cannot be required to take more leave than necessary. There are some new exceptions in the regulations.

An exception that might prove beneficial to select employers is that if an employee takes a partial day of intermittent leave and then arrives at the worksite after the work day has begun, the employer can charge the employee with a full day of FMLA leave where it would be impossible for the employee to begin working after the shift has commenced. The regulations provide that examples of this would include situations where the employee is a flight attendant or working in a sealed environment where it would be impossible for an employee to enter the worksite and begin work after the shift has started. The Department of Labor has stated that this is a very narrow exception which requires that it is actually impossible to allow the employee to begin the shift late and that no alternative work is available.

Another exception is that an employer cannot charge an employee a portion of an increment of leave if the employee is allowed to work any portion of that increment. For example if an employee is taking an hour of leave from 9:00 a.m. to 10:00 a.m. each morning for doctors appointments under a period of intermittent leave, but one day the employee shows up at 9:30 a.m. and wants to begin work?the employer may not charge the employee for FMLA leave from 9:00 a.m. to 9:30 a.m. if the employer allows the employee to work from 9:30 a.m. to 10:00 a.m. If the employee is allowed to work any portion of the increment, the employer cannot charge the employee for any FMLA leave for that increment.

Other changes are that mandatory overtime can be counted toward the employee?s total FMLA leave taken and that an employer cannot force an employee to transfer to another position to accommodate an employee?s request for intermittent leave. There are also clarifications to the provisions regarding light duty, including that an employee can return to light duty work, but such work does not count toward FMLA leave. The right to return to the employee?s previous position and the right to take any remaining FMLA leave are suspended during the period during which the employee is working light duty.

Additionally, where an employee works on a variable schedule where hours of work change from week to week, the employer is to calculate the employee?s ?average work week? for purposes of counting intermittent leave by taking the average of the hours worked over the last 12 months of work (previously the employer looked at the last 12 weeks).

Related Links:
Intermittent FMLA Leave