FMLA Notice for Intermittent Leave or Reduced Work Schedule

by Nichole De Groodt  Bio   email 
TOC Management Services 

Overview

This article explains the employer’s obligations for federal Family and Medical Leave Act (FMLA) notice procedures when an individual takes intermittent leave or has a reduced work schedule.

Under the FMLA, an employee is entitled to take intermittent leave or work a reduced work schedule if the employee’s health care provider certifies that the employee’s serious health condition necessitates the leave or modified work schedule.  For example, a health care provider may certify that Joe needs four hours of intermittent leave each Wednesday for treatment.  The individual’s factual situation determines how often his employer must give FMLA notice.

Regulations on Notice

29 CFR §§ 825.301 and 208

Within a reasonable period of time (one or two business days after an employer learns of an employee’s need for leave, if feasible), the employer must provide notice to the employee that it will count leave taken against the employee’s FMLA leave entitlement.[1]  The employer must provide this notice at least once, at the first of each six-month period in which the employee takes leave.[2]  However, if any of the required notification procedures disclosed in the original notice change, the employer must provide new notice that references the original notice and discloses such changes.[3] 

If the employee is entitled to paid leave, the employer must designate in writing whether it will count the paid leave as FMLA leave[4] (see Tips to Employers No. 3).

Following are some examples of how this notice requirement would apply to intermittent or reduced schedule leave.

Examples Where “No Notice is Required”

In the following examples, the FMLA would not require the employer to provide more than one notice at the beginning of each six-month period in which leave is taken.

Example #1

Joe’s physician certifies he must take four hours off each Wednesday so he can attend intensive physical therapy over a ten-week period (totaling one full 40-hour workweek of leave). Joe has two weeks of accrued paid leave and 12 weeks of FMLA leave available.  The company’s original notice to Joe provides he will be on paid leave until he exhausts his accrued paid leave, and that the company will count the intermittent leave time for his serious health condition against his FMLA entitlement.  After the ten-week period, Joe returns to a full work schedule without further complications.  Since Joe’s circumstances did not change and he only used one of his two full workweeks of paid leave, only the initial FMLA notice is required.

Example #2

Mary provides the company with a note from her child’s doctor certifying Mary needs to periodically take time off to care for her child, who has chronic asthma that is exacerbated by high pollen levels in the air.  The company provides Mary with notice that it will count the intermittent leave taken from work to care for her daughter against her FMLA leave entitlement as unpaid time.  Mary misses various days throughout the summer when the pollen count is high and her child consequently suffers from severe asthma attacks that require temporary care.  Barring any other changes, the FMLA would not require the employer to provide Mary with more than the original notice, because the period of intermittent leave did not exceed six months.

Examples Where “Notice is Required”

In the following examples, the employer must provide additional notice to the employee that leave is being counted toward his or her FMLA leave entitlement, and must specify any changes being made in relation to the original notice.

Example #3

In Example #1 (above), the FMLA did not require the employer to provide additional notice to Joe.  However, assume Joe took ten weeks of intermittent leave for physical therapy, but his doctor determined that Joe needed to continue the four hours of treatment every Wednesday for another five months.  Joe will exhaust his second week of accrued paid leave.  Consequently, the remaining leave time will be unpaid.  The employer must provide Joe with additional notice within a reasonable period of time (one or two business days, if feasible).  The new notice should refer to the original notice, inform Joe that this additional FMLA leave will be unpaid leave, and that the employer will continue to charge the intermittent leave against his FMLA entitlement.

Example #4

In Example #2 (above), Mary has received the original notice.  However, her daughter suffers a severe asthma attack, is hospitalized, and is diagnosed with bronchitis, which will aggravate the asthma and require around the clock care for two weeks, or until the child gets better. Consequently, Mary now takes two consecutive weeks off to care for her child.  Because the child’s health condition has changed since the original notice, the employer must provide a new notice informing Mary that it will count the new two weeks of leave time against her FMLA entitlement.

Example #5

Harry provides the company with a physician’s medical certification that he must take intermittent leave over a four-week period of time for rehabilitation treatment.  The company provides Harry with the proper FMLA notice.  Two weeks later, Harry presents the company with medical certification that he must take four weeks leave to care for his ill parent who has cancer.  The company must provide Harry with a new FMLA notice designating the leave to care for his ill parent as FMLA leave.

Tips to Employers

1.   Accurate recordkeeping is essential.  The employer should assign a management employee to make all FMLA eligibility determinations, send the proper notices, and maintain the records. 

2.   When the regulations do not require additional notice for intermittent leave or a reduced work schedule, the employer may want to provide the employee with reasonable notice before he or she exhausts his or her total FMLA leave entitlement.  For example, due to many reasons, Mary, in Examples #2 and #4, has used all of her FMLA leave entitlement except for eight hours.  It is prudent for the employer to notify Mary that she now only has eight hours of FMLA leave remaining.  This notice can prevent disputes over absenteeism at a later date, especially if the employer has a no-fault attendance policy and will count absences after Mary’s FMLA entitlement ends against her for disciplinary purposes.

3.   The U.S. Department of Labor’s regulations conflict regarding when to give FMLA notice if an employee is eligible for paid leave.[5]  Employers may want to periodically advise employees who are taking paid leave what their status is in regard to the company’s paid leave policy and their FMLA eligibility.  For example, an employer may have a salary continuation policy that changes to a short/long-term disability insurance policy after a specific time period has elapsed.  Prior to the salary continuation ending, the employer’s notice would advise the employee of his or her paid leave status and remaining FMLA eligibility.  The notice would also provide the summary plan description information and the insurance forms that the employee needs to submit in order to maintain eligibility for the short/long-term disability benefits.

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