Six keys to managing FMLA intermittent leave 

February 19, 2024

Intermittent leave helps employees manage a serious health condition for themselves or someone in their family. While essential for employees, it’s a huge challenge for HR departments, particularly those at smaller companies that have fewer resources.

The significant burden of administering intermittent leave may feel overwhelming, but you can ease the process significantly by planning thoughtfully, setting and enforcing clear and consistent expectations and implementing available technology solutions.

What is intermittent leave?

Generally speaking, the Family and Medical Leave Act (FMLA) allows employees to take 12 weeks of unpaid, job-protected leave per year to care for themselves or a covered family member with a serious health condition, to deal with issues related to the deployment of a covered family member in the military, known as a qualifying exigency, or to bond with a new child. The FMLA also provides for up to 26 weeks of leave per year to care for a defined family member who is also a covered service member with a serious illness or injury. (Check out our FMLA Handbook for more complete details about the law and who it covers.) FMLA leave can be taken all at once or in smaller increments, known as intermittent leave.

Employees often use intermittent leave to deal with flare-ups of chronic health conditions — such as migraines or asthma — or to receive ongoing medical treatment. The law does not require employers to offer intermittent leave for bonding with a new child, but many opt to do so.

Why is intermittent leave so challenging to manage?

Managing intermittent leave requires very detailed tracking and record keeping to ensure policies are applied consistently and in compliance with the law. Not only do employers need to track an employee’s intermittent leave usage in increments down to the minute, they also need to ensure and document that:

  • The employee is eligible for intermittent leave.
  • The absence is for a covered reason.
  • Required medical certification has been received.
  • Leave requests and other information are received within prescribed timeframes.
  • The employee has an existing leave balance to draw from and that balance is replenished on time.
  • Leave policies are not being abused.
Compliance is complicated by the continuing growth of state and local leave laws that companies also need to follow and understand.

Six best practices for managing intermittent leave

Below are six things you can do to make intermittent leave easier to manage at your organization.

1. Create a clear and thorough leave policy 

A good strategy for managing intermittent leave begins with a clear and thorough written policy that is easily accessible to employees. Your policy should include:
  • The process and requirements for determining eligibility (including the medical certification process, if necessary) and the expectations for any employee taking intermittent leave
  • Very specific notification processes for employees who need to take unplanned leave — e.g., “Call in no less than one hour before your shift begins,” rather than something more general like “call in as soon as practical”
  • A standard Leave Request Form to be completed for each leave
  • An anti-fraud provision, spelling out what actions can be taken if employees misuse leave
Armed with these clear policies and documents, your HR professionals, managers and the employees requesting leave will be better informed about requirements, and the process will go more smoothly.

2. Train your managers on your policy

Because managers are often the people responsible for approving and tracking intermittent leave, employers need to make sure they are well trained and up to speed on your policies and practices.

For example, if the company policy requires employees to contact their manager when they cannot work, the manager needs to understand how an employee may be requesting leave covered by the FMLA. If the manager is not properly trained in how to handle such requests, the manager could open the company up to claims of FMLA interference and retaliation. Employees do not need to use any magic words to request FMLA leave.

An informed manager should know:

  • What types of situations are covered under FMLA, how to identify whether an employee may need intermittent leave and whom to notify when an employee requests leave
  • How to respond to an employee who has indicated a need for leave that may be covered under the FMLA
  • What questions to ask an employee who is requesting leave or taking approved intermittent leave time and how to document information appropriately
  • What patterns or red flags to look for if an employee is suspected of misusing intermittent leave
Cost-effective ways to shield your company from liability and protect against misuse of intermittent leave include:
  • Investing in FMLA-specific onboarding for new managers
  • Creating detailed FAQs to guide managers in their interactions with employees

3. Protect yourself from the outset to avoid problems later

Getting complete information at the outset and setting clear expectations before an employee takes leave can prevent problems down the road.

For example, medical certifications can be an effective means for employers to prevent the misuse of FMLA, so employers should insist on certification at every appropriate opportunity, along with the proper notices. Following up on incomplete or inadequate certification is also important to maintain compliance and provide crucial information regarding how and when an employee needs leave.

Once the leave has been approved, schedule an “expectations” meeting with the employee. At this meeting, a member of the HR staff would walk the employee through the FMLA policy and give them a written copy to take home.

4. Don’t be afraid to ask questions

Employers are understandably sensitive when it comes to intermittent leave. They want to respect the privacy of their employees during a difficult time and not pry into health or family life.

“There’s often a concern about ‘What can we ask of employees? Can we really delve into medical conditions? Isn’t that protected under HIPAA’?” says Jeff Nowak, shareholder at Littler Mendelson and author of the FMLA Insights blog.

Despite these legitimate concerns, he says, employers do have the right to be reasonably informed about why an employee will be absent.

“Whether the reason is for a medical issue or for a flat tire or because they have to pick their kid up from school, you have a right to know why an employee can’t report to work,” Nowak says. “Don’t be afraid to ask these basic questions.”

5. Monitor for misuse, but be fair and thorough before taking disciplinary action or pursuing recertification

With these policies and procedures in place, misuse of intermittent leave is less likely. Nonetheless, employers should remain alert but prudent.

Consider avoiding recertification — a process that requires the employee to recertify that leave is necessary — unless the behavior raises objective concerns and is clearly documented.

“Be wary of recertifying in an instance where someone has been absent one occasion over their allotted frequency — for instance, they are approved for two days, but they are absent for three,” says Nowak.

“Employers should identify some other objective basis — for instance, a pattern of absences on Mondays and Fridays — before they recertify.”

To take any disciplinary action for the fraudulent use of FMLA, employers must first conduct a thorough and fair investigation. These investigations are crucial to avoiding unnecessary terminations, as well as possible lawsuits.

6. Make the whole process easier with real-time, connected technology

From ensuring compliance to saving HR time, technology options can help employers tackle the thorny challenge of managing intermittent leave.

Coping with volume. According to Denise Ferguson, AVP of People and Communications at Unum, “We estimate that 35% of leaves result in intermittent absences. That volume can be really critical for employers to manage on a day-to-day basis.”

Technology that automates leave requests and absence tracking can help employers deal with ever-growing leave volumes.

Ensuring accuracy and compliance. Automating the process using technology that updates leave requests in real time, with built-in legal requirements and company policies, can help employers stay compliant and process leaves accurately.

Such technology can reduce confusion, ensure accurate absence coding and paychecks and provide employees with up-to-date information about how much leave of which type they have left in their leave bank.

Streamlining absence management. Integrating real-time leave management data with the company’s HR information system (HRIS) can create a better experience for employees, managers and HR alike. Integration allows managers or HR team members to see the most up-to-date information and approve requests without answering the phone or switching back and forth between systems. “Reducing those manual touchpoints … allows HR to focus on other, more strategic efforts,” according to Ferguson. According to the recent Unum Employer Pulse Survey, 9 out of 10 employers without fully integrated data say this lack of integration impacts their business.1

To reap the benefits of integrated data, it’s important that different HR tech solutions work well together, according to Rich Lappin, VP of Platform Strategies at Unum, and that in turn depends on having a tech partner that understands your existing systems and requirements. "If you don't have that, you end up with disparate systems that you wish would work together a little better,” Lappin says.

“We estimate that 35% of leaves result in intermittent absences.”

— Denise Ferguson, AVP, People and Communications, Unum

Protect your company, support your employees

In conclusion, intermittent leave doesn’t have to be an unmanageable burden for your team or an alienating experience for your employees. With clear policies, appropriate training and targeted technology, you can develop an approach that not only keeps your company protected and compliant, but also demonstrates compassion and care for your valued employees.

Intermittent absence integration for Workday HCM

Does your company use Workday Human Capital Management? See how Unum Total Leave customers can streamline leave and intermittent absence management with our integrations for Workday HCM.

1 Unum Q2 Employer Insights Pulse Survey, August 2023.

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