Intermittent Leave Under the FMLA

Robin Foret
June 1, 2008 — 7,795 views  
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The Family and Medical Leave Act (“FMLA” or “Act”) provides up to 12 weeks of unpaid leave to eligible employees (26 weeks in connection with military service).  Leave may be taken in a lump sum or on an intermittent basis, which includes sporadic absences, as well as reduced leave schedules.  Generally, the FMLA allows employees who qualify to take unpaid leave from work for the following reasons: for the birth of a child and to care for that child; for the placement of a child with the employee for adoption or foster care; in order to care for a spouse, son, daughter or parent who has a serious medical condition; and because of an employee’s own serious medical condition that renders the employee unable to perform his or her job duties.


The Intermittent Leave Rule – when a serious medical condition of the employee or immediate family member, as defined above, is the reason for the leave, an employee has the right to request intermittent leave.  Intermittent leave can include partial day absences from work, reduced leave schedules, or absences from the work station in small increments of time.  When intermittent leave involves the serious medical condition of an immediate family member, the employee may even request leave in short intervals of time to drive the family member to the doctor.  If the FMLA’s requirements are met, the employer must honor such requests for intermittent leave.  Nevertheless, when an employee contemplates intermittent leave, he or she must attempt to schedule that leave without disrupting business operations whenever possible. 


Requests for intermittent leave in connection with the birth of a child, an adoption or foster care, however, is not mandatory under the Act.  The employer may allow intermittent leave for such absences, but it is not required.  In that instance, an employer can inform the employee that leave must be taken in blocks of time, but may not be taken in small increments.  When an intermittent leave request is granted for any reason, it is always important to track carefully the amount of incremental leave taken toward the maximum amount of leave permitted.


Application to the Workplace – In recent years, courts have noted that there is no limit to the size of an increment of leave under the FMLA.  Accordingly, it is not uncommon for employees to ask for leave in small increments to use the restroom, do exercises, or even to comply with certain eating requirements.  Frequently, an employee will not be entitled to intermittent leave because his or her health problem (or the health condition of the immediate family member) does not qualify as a serious medical condition under the Act.  This will be entirely dependent on the specific facts of each individual situation.  For example, an employee’s request for intermittent leave to take frequent bathroom breaks may or may not be appropriate depending on whether the underlying medical condition is serious as defined by the Act. 


In a recent case, a federal court concluded that an employee’s request for intermittent leave in the form of days missed and for periodic doctors visits in connection with a condition that caused diarrhea, stomach problems and back pain may be appropriate.   In Maurico v. Texstar Enterprises, Inc., 2008 WL 558211 (W.D. Tex.), the employee requested intermittent leave claiming that medication he took to control his hypothyroidism caused severe stomach-related problems, which necessitated time off from work and frequent doctor visits.  The court determined that the employee’s condition was serious because it was severe enough to require missed days from work and doctors visits.  Thus, it qualified as a chronic medical condition under the Act.  In other cases, employees have even been permitted to request intermittent leave to meet special eating requirements due to conditions such as diabetes.  


Transfer to Alternative Position – If a reduced work schedule is required as part of a request for intermittent leave, the employer may transfer the employee temporarily to an alternative position for which the employee is qualified and that has equivalent pay and benefits and, that better accommodates the recurring periods of leave.    


Practice Tips – FMLA leave may include a request for absences in short increments of time.  However, the employee must qualify for FMLA leave under the Act.  When confronted with such a request, an employer should consider the following:

-         Whether the employee is otherwise qualified for FMLA leave?

-         Did the employee provide adequate notice to the employer?

-         Does the employee have a serious medical condition?  

-         Can the employee satisfy the particular medical needs in a less disruptive manner than originally requested?  


The information contained in this article is not designed to address specific situations, and does not include rules and regulations that apply to all states.  If you have questions concerning this topic, you should consult with legal counsel of your choice to obtain advice on various fact specific matters.



Robin Foret

The Foret Law Firm

Robin Foret practices in the areas of employment law, commercial litigation and specialty insurance defense claims. She handles a variety of employment matters such as theft of trade secrets, breach of employment agreements, non-competition agreements, wage and hour issues under the Fair Labor Standards Act (FLSA), discrimination and harassment issues under Title VII of the Civil Rights Act of 1964 (Title VII) and the Texas Commission on Human Rights Act (TCHRA), the Americans with Disabilities Act (ADA), Family Medical Leave Act (FMLA) issues, and the Sarbanes-Oxley Act (SOX). Robin has handled a wide variety of employment law matters for employers, as well as for executive-level employees, before agencies, and state and federal courts.