What? Intermittent Leave or Reduced Schedule Leave….Part 1

We have discussed for what reasons an eligible employee may take leave and for how long, but we have yet to look at how an employee may take FMLA leave. I know what you’re thinking, what kind of question is that? Doesn’t the employee just not show up for work? And the answer to that is one lawyers love to give and everyone else in the world hates: it depends.

(a)  Definition. FMLA leave may be taken intermittently or on a reduced leave schedule under certain circumstances. Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason. A reduced leave schedule is a leave schedule that reduces an employee’s usual number of working hours per workweek, or hours per workday. A reduced leave schedule is a change in the employee’s schedule for a period of time, normally from full-time to part-time.

29 CFR § 825.202(a)

That’s right, in addition to taking leave for a continuous block of time, there are two other types of leave under FMLA, intermittent or reduced schedule. However, an eligible employee is not always entitled to intermittent and reduced schedule leave. Sometimes employer approval is required whereas other times it is not. Let’s look at the first possible reason an eligible employee may take intermittent or reduced schedule leave under FMLA.

(b) Medical necessity. For intermittent leave or leave on a reduced leave schedule taken because of one’s own serious health condition, to care for a spouse, parent, son, or daughter with a serious health condition, or to care for a covered servicemember with a serious injury or illness, there must be a medical need for leave and it must be that such medical need can be best accommodated through an intermittent or reduced leave schedule. The treatment regimen and other information described in the certification of a serious health condition and in the certification of a serious injury or illness, if required by the employer, addresses the medical necessity of intermittent leave or leave on a reduced leave schedule. See §§ 825.306, 825.310. Leave may be taken intermittently or on a reduced leave schedule when medically necessary for planned and/or unanticipated medical treatment of a serious health condition or of a covered servicemember’s serious injury or illness, or for recovery from treatment or recovery from a serious health condition or a covered servicemember’s serious injury or illness. It may also be taken to provide care or psychological comfort to a covered family member with a serious health condition or a covered servicemember with a serious injury or illness.

29 CFR § 825.202(b)

This is one of the situations where the employer really has no say in the matter. If the employee has a serious health condition, or needs to care for family member or a covered servicemember, then the employee may be entitled to intermittent or reduced schedule leave. Whether or not an eligible employee would need such leave is determined by medical necessity, which in turn is determined by a healthcare provider. Common reasons for reduced intermittent or reduced schedule leave are for medical treatment or to provide physical and psychological care to family members or covered servicemembers.