Explaining what intermittent FMLA leave is requires first explaining the general provisions of the Family and Medical Leave Act—the “FMLA” in intermittent FMLA leave.
Briefly, the federal law allows employees to take unpaid time off to attend to their own health problems or to care for a relative. Employees qualify to start requesting and using FMLA leave after they have put in the equivalent of one year of full-time work for a single employer.
The leave can be taken for the following reasons:
During the coronavirus crisis of 2020, eligibility for FMLA leave was expanded. You can read more about those emergency rules elsewhere on our website.
Employees are allowed to use FMLA as they need it. This means a lot of things.
First, employers must let eligible workers request small increments of unpaid leave to tend to their own health or to act as a caregiver. This is the intermittent FMLA leave we have been building up to discussing.
Taking continuous FMLA leave would involving using the entire available 12 weeks or 26 weeks at a single stretch. Under rules enforced by the U.S. Department of Labor, employers cannot require workers to use continuous FMLA leave. Also, employers generally cannot require workers to use all their paid time off before taking FMLA leave.
Still, the choice is not intermittent FMLA leave versus continuous FMLA leave. Rather, an employee has the right to ask for and receive approval for time off even if their employer does not grant paid sick or personal leave.
As a practical matter, employees can request and use intermittent FMLA leave in the amounts that their employer authorizes for other types of leave. For instance, employees who can take half-days of sick leave can also take half-days of FMLA leave. Intermittent leave can be scheduled to be used regularly, as for doctor appointments.
Specific procedures involving paperwork will differ at each employer, but companies and agencies are required to have a formal process for requesting, reporting and tabulating FMLA leave. An employee who knows they will need unpaid time off should submit their request early and be prepared to document the purpose for using leave. Both the employee and the employer have responsibilities to keep track of how much FMLA leave has been used.
FMLA leave can be claimed after the fact when an emergency arises. Even in that circumstance, the employee should be prepared to give their manager a doctor’s note or other type of report that justifies taking time off.
On the employer side, they can reject an FMLA leave request when the stated reason is not one of those listed above. An employer also has the authority to decline FMLA requests from essential employees whose duties cannot be covered during the leave period.
Importantly, FMLA rules dictate that employees who take unpaid time off be allowed to return to their jobs at their previous pay and seniority. Employers cannot demote or reassign a worker just because they went on leave. Despite this, FMLA retaliation is common and one of the more frequent reasons people hire Ohio employment law attorneys.
If your employer interfered with your rights to take FMLA leave, contact one of our Ohio employment attorneys. We are based in Columbus and also have offices in Cleveland and elsewhere across the state. Schedule a free, confidential consultation online or call Agee Clymer Mitchell & Portman at (614) 221-3318 or (800) 678-3318.