Archive for November, 2018

What? Intermittent Leave or Reduced Schedule Leave….Part 2

One more from Jarrod.  Then I have to start writing them myself again. . . . or do I.

Let’s look at some other qualifiers for medical necessity for intermittent or reduced schedule leave.

(1) Intermittent leave may be taken for a serious health condition of a spouse, parent, son, or daughter, for the employee’s own serious health condition, or a serious injury or illness of a covered servicemember which requires treatment by a health care provider periodically, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks. Examples of intermittent leave would include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of six months, such as for chemotherapy. A pregnant employee may take leave intermittently for prenatal examinations or for her own condition, such as for periods of severe morning sickness. An example of an employee taking leave on a reduced leave schedule is an employee who is recovering from a serious health condition and is not strong enough to work a full-time schedule.

(2) Intermittent or reduced schedule leave may be taken for absences where the employee or family member is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition or a serious injury or illness of a covered servicemember, even if he or she does not receive treatment by a health care provider. See §§ 825.113 and 825.127.

29 CFR 825.202(b)

These provisions give us some concrete situations where an employee may be entitled to intermittent or reduced schedule leave, and also gives examples of what qualifies as intermittent leave. Intermittent leave is appropriate to care for a family member, one’s own serious health concerns, or for a covered servicemember when treatment by a healthcare provider is needed, but isn’t continuously needed. Either intermittent or reduced schedule leave may also be taken when the employee or the employee’s family is incapacitated due to a serious health condition even if the employee or family member does not receive treatment by a healthcare provider.

Another situation where reduced or intermittent leave may be permissible is in the case of birth or placement of a child for adoption or foster care.

(c) Birth or placement. When leave is taken after the birth of a healthy child or placement of a healthy child for adoption or foster care, an employee may take leave intermittently or on a reduced leave schedule only if the employer agrees. Such a schedule reduction might occur, for example, where an employee, with the employer’s agreement, works part-time after the birth of a child, or takes leave in several segments. The employer’s agreement is not required, however, for leave during which the expectant mother has a serious health condition in connection with the birth of her child or if the newborn child has a serious health condition. See § 825.204 for rules governing transfer to an alternative position that better accommodates intermittent leave. See also § 825.120 (pregnancy) and § 825.121 (adoption and foster care).

29 CFR § 825.202(c)

Note that only if the employer agrees, following the birth of a child or the placement of a child for adoption or foster care, may an eligible employee take intermittent or reduced schedule leave. If the employer does not agree, the employee may still be eligible for continuous leave. The employer has no say in the matter, however, if the expectant mother or the child has a serious health condition.

(d) Qualifying exigency. Leave due to a qualifying exigency may be taken on an intermittent or reduced leave schedule basis.

29 CFR § 825.202(d)

An eligible employee is entitled to take intermittent or reduced schedule leave for that as well.

Lastly, it is worth noting that if an eligible employee is planning leave for medical treatment, and plans on take reduced schedule or intermittent leave, the employee must take reasonable steps to not disrupt the employer’s operations.

Eligible employees may take FMLA leave on an intermittent or reduced schedule basis when medically necessary due to the serious health condition of a covered family member or the employee or the serious injury or illness of a covered servicemember. See § 825.202. Eligible employees may also take FMLA leave on an intermittent or reduced schedule basis when necessary because of a qualifying exigency. If an employee needs leave intermittently or on a reduced leave schedule for planned medical treatment, then the employee must make a reasonable effort to schedule the treatment so as not to disrupt unduly the employer’s operations.

29 CFR 825.203

The rest of the language in this regulation is basically repeating what has already been said throughout this section.