Intermittent FMLA Leave in California

What is intermittent FMLA leave?

Leave under California law

FMLA leave vs. intermittent FMLA leave

FMLA leave usually occurs in blocks of time. You might need three (3) weeks off work entirely to care for an ailing parent or twelve (12) weeks for new parent bonding leave. These situations are the "regular" version of FMLA leave. But FMLA leave does not have to occur in a block of time. If, for example, your child has chronic asthma, you might need a few hours off every week to take him to the doctor. This can be covered as protected FMLA leave. Because it does not occur in a block of time, it is considered to be intermittent FMLA leave.

How many days do you get for intermittent FMLA leave?

FMLA provides twelve (12) full workweeks of protected leave in a year. When you take intermittent FMLA, the time lost is deducted from this total. Think of FMLA as a bank account with 480 work hours in it every year. Whenever you take FMLA, your account gets a "deduction." This can be done on an hourly, daily, or weekly basis, depending on how your doctor has certified your medical leave. Whenever your "account" is left with zero hours, you have no more FMLA protection for the year.

Intermittent FMLA leave: Frequency and duration

When you provide your employer with FMLA documentation from your doctor, it will specify the frequency and duration of leave required due to your (or a family member's) medical condition. For example, a cancer patient might seek eight weeks of FMLA leave to complete chemotherapy. On the other hand, a person with chronic pain might have a doctor's note that calls for "up to" four days per month off work. Employers can challenge any leave that exceeds the scope of your doctor's certification. Employers can also seek recertification by the doctor every thirty days. If the "circumstances described by the previous certification have changed significantly," your employer can seek recertification even before the thirty-day period has lapsed.

Intermittent FMLA leave: Paperwork

To qualify for protected FMLA leave, you must have certification from your doctor to prove that there is a medical issue that constitutes a "serious health condition." Your employer can request this documentation to validate your FMLA leave.

The Department of Labor provides two separate certification forms - one for your own serious health condition and one for a family member's serious health condition. These forms have sections that require the doctor to specify, in detail, how much leave you will need. Be sure to talk to your doctor before having them complete these forms. If your doctor certifies less time than is needed, your employer can limit your request for accommodation under FMLA to only the time(s) specified by your doctor on the certification form.

Can intermittent FMLA leave be denied?

In general, an employer cannot deny a certified request for intermittent FMLA. Employees do have an obligation to take reasonable steps to work with the employer's schedule. You do not have to take less leave than your doctor specifies in your certification form, but you should try to work with your employer to be as flexible as possible on the scheduling. An important note: under the Families First Coronavirus Response Act, employers may deny intermittent FMLA leave requests for workers who need to care for a child due to a school or daycare closure. Be sure to ask an employment lawyer about unique FMLA situations related to COVID-19. We invite you to call us.

What to do when FMLA runs out?

Do not give up hope of keeping your job after FMLA runs out! Other legal provisions might apply to your situation. For example, the Americans With Disabilities Act requires employers to make "reasonable accommodations" for disabled employees. While the courts are split on how this applies to FMLA and what accommodations are reasonable, the ADA is an important law to consider. There could be other legal protections depending on your unique circumstances. For more information, call us at 888-762-0297

Can you be laid off while on FMLA?

The FMLA protects workers from being fired for exercising their right to take medical leave. An employer can, however, lay off a worker for reasons unrelated to FMLA. Perhaps an employee had performance issues before taking leave. Maybe the employer had a plan to reduce its workforce before the leave was requested. These circumstances can be lawful grounds for terminating an employee on FMLA leave, but they can also be used as a pretext by employers who want to fire an employee for taking FMLA. You need to consult with an employment lawyer about your legal rights.

Does FMLA protect your job position?

The FMLA ensures that your employer cannot fire you because you took protected medical leave. Your employer can, however, return you to a different work position, so long as it is an "equivalent position." This means that it must be similar to your old job in terms of pay, benefits, duties, working location, and working conditions. If you do not consider your new position equivalent to the old position, it is essential to consult with an employment lawyer.

Intermittent FMLA leave:
Can you sue if your position is eliminated?

After taking protected FMLA leave, you have the right to return to your job - or an equivalent position. If your employer terminates your position or declines to reinstate you in violation of the FMLA, you have the right to sue for your financial losses like back pay and lost employment benefits. You also have the right to be compensated for your emotional losses.

Losing a job while a loved one is seriously ill can be traumatizing. The FMLA protects against this, and employees have the right to sue employers for FMLA violations. It is essential to hold employers accountable for FMLA violations. This prevents future abuse and helps ensure that other employees have access to the leave they are owed under FMLA, as well.

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