The Rules of FMLA Leave The lowdown on when and how employees are permitted intermittent leave

Q: Is intermittent leave permitted under the FMLA? If so, what are the guidelines?

A: The Family and Medical Leave Act (FMLA) of 1993 generally requires private sector employers of 50 or more employees to provide up to 12 workweeks of unpaid, job-protected leave to eligible employees for certain family and medical reasons within any 12-month period. These employers are also required to maintain eligible employees' pre-existing group health insurance coverage during the leave and restore eligible employees to their same or an equivalent position at the conclusion of their FMLA leave.

Under certain circumstances, the FMLA allows for leave to be taken in reduced amounts. In the regulations, it is referred to as "intermittent leave" or "leave on a reduced work schedule." Intermittent leave is defined as FMLA leave taken in separate blocks of time due to a single qualifying reason. By comparison, a reduced leave schedule is a change in the employee's schedule for a period of time, normally from full-time to part-time. In either event, the regulations set forth the right of employees to take leave in blocks of hours or days, as well as weeks. Whether the intermittent or reduced schedules apply depends on the particular circumstances. For instance:

• Birth/placement of a child: For the birth or placement of a child, an employee is not entitled to intermittent leave or a reduced leave schedule unless the employer and the employee both agree. However, the employer's agreement is not required for leave during which the mother has a serious health condition in connection with the birth of her child or if the newborn child has a serious health condition.
• Leave for serious condition: Leave due to a serious health condition of the employee or the employee's spouse, child or parent may be taken intermittently or on a reduced leave schedule "when medically necessary."
• Medical necessity: The term "when medically necessary" for intermittent or reduced leave means that there must be a medical need for the leave, as distinguished from voluntary treatments and procedures. Also, it must be shown that the medical need cannot be accommodated outside working hours or without having a reduced schedule.

The provisions calling for unpaid leave for intermittent leave or leave on a reduced schedule do not affect the Fair Labor Standards Act (FLSA)-exempt status of a salaried employee. Employers may deduct the pay of otherwise exempt salaried employees for FMLA absences of less than one full day without affecting the salary basis and exempt status under the FLSA.

In the event that an employee needs to take time off with any amount of regularity on the basis of an intermittent leave (for example, a physical therapy schedule of a couple hours each day), and it is foreseeable based upon planned medical treatments, the employer may require the employee to temporarily transfer to an available position for which the employee is qualified that offers equivalent pay and benefits and that better accommodates the employee's leave schedule and the employer's need to have the work performed.

There is no minimum duration or size of an increment of leave taken on an intermittent or reduced schedule under the law. However, an employer may limit leave increments to the shortest period of time that the employer's payroll system uses to account for absences or use of leave, provided it is one hour or less.

In sum, in determining whether or not intermittent or reduced schedules apply, an employer must look at the employee's circumstances in order to properly determine the rights of that employee under the FMLA.

Note: The information in this column is provided by the author, not Entrepreneur.com. All answers are general in nature, not legal advice and not warranted or guaranteed. Readers are cautioned not to rely on this information. Because laws change over time and in different jurisdictions, it is imperative that you consult an attorney in your area regarding legal matters and an accountant regarding tax matters.

Larry Rosenfeld is co-chair of the national labor and employment practice of the law firm Greenberg Traurig LLP. A frequent writer and lecturer on employment law topics, Rosenfeld is experienced in the areas of federal laws pertaining to employment issues, EEOC, ADA, termination matters, employment liability and the Fair Labor Standards Act.