Should I ask for FMLA intermittent leave?

The Family Medical Leave Act is a federal law that protects the rights of employees to up to twelve weeks of medical leave within a twelve month period for treatment of a serious medical condition. FMLA protects not only the right to a single continuous leave period; FMLA also protects the right to take intermittent leave. Intermittent leave allows employees to take FMLA-protected leave in small leave periods.

Intermittent leave is an important tool for employees who have a serious medical condition but may need ongoing treatment on a periodic basis, such as weekly or monthly treatment sessions, as well as those who have serious medical conditions in which the symptoms come and go. Employers generally do not appreciate FMLA-protected intermittent leave because it is easier for employees to abuse intermittent leave than a single continuous leave period. As a result, employers are often skeptical of a request for intermittent leave.

FMLA Intermittent Leave

Intermittent leave should not be confused with a regular sick leave policy, although the employer may use many aspects of its regular sick leave policy to monitor intermittent leave use, such as requiring the same process to call in the request for leave. Under the Department of Labor regulations minor health problems do not qualify for FMLA-protected leave. These include health problems or treatment such as the common cold, flu, dental cleanings, periodontal care, or minor ulcers.

However, if complications in these types of health condition arise then FMLA may apply. The complications may be serious medical conditions. (See 29 C.F.R. 825.113(d).) Care for health conditions that do not require medical treatment also will not trigger FMLA protections. FMLA requires a medical provider to provide continuing treatment for the medical condition. (See 29 C.F.R. 825.113(c).)

To confuse the issue, the Department of Labor issued a 1996 advisory opinion that suggests virtually any medical condition that results in a three day incapacity plus continuing medical treatment (such as a visit to the doctor and a script for medication) could become an FMLA-qualifying serious medical condition. (Read the advisory opinion here: http://www.dol.gov/whd/opinion/FMLA/prior2002/FMLA-87.htm.) Unlike sick leave, which usually allows you to call in the same day, intermittent leave must be pre-approved.

Intermittent leave for serious medical conditions

If you foresee yourself needing ongoing and sporadic leave from work for a serious medical condition (and you should carefully read this page to learn more about what qualifies as a serious medical condition) then it is usually a good idea to request certification for intermittent FMLA leave. FMLA will protect your right to leave where the employer’s standard sick leave policy will not. Generally it’s better to ask for approval up front and not use the intermittent leave than find yourself in need of the FMLA protections for intermittent leave and have to scramble to try to gain the employer’s approval before you need leave.

You can’t just take leave and expect FMLA to apply when things go south. You must make a request for intermittent leave. Your employer has the right to deny your request until the necessary information is provided. The employer also has a defined period of time to review your request. Work with your medical care provider as soon as possible to obtain certification.

Of course, if you request FMLA intermittent leave it is important that you carefully follow the employer’s guidelines. That will likely include procedures to make advance notice of leave periods and certain documenting of your leave use. You can quickly put your leave and your job at jeopardy by failing to follow the appropriate procedures. Employers are so cautious about intermittent leave that if you google “FMLA intermittent leave” you are likely to find more links to intermittent leave abuse than helping information about requesting intermittent leave.

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