Managing Intermittent Family and Medical Leave

When an employee needs a leave of absence under the California Family Rights Act (“CFRA”) and/or the federal Family and Medical Leave Act (“FMLA”) for their or their family member’s serious health condition, whether leave is taken in a period of consecutive workweeks, as part of a reduced work schedule, or on an “intermittent basis,” depends on what the healthcare provider directs. Intermittent absences may be planned, e.g., appointments or treatments.  They may also be unplanned, e.g., when the employee (or the family member) is managing a chronic serious health condition. Unplanned intermittent leave can be particularly challenging to manage.  Read on for answers to the questions we hear most:

Question: Our employee has requested and is eligible for CFRA/FMLA leave to manage their chronic serious health condition. They provided a medical certification that states they are “estimated” to need leave once a month for a period of 1 or 2 days, but doesn’t give any other information. It will be very difficult for our team to manage irregular short-notice call-outs. Do we have to grant leave on these terms?

Answer: Yes, an eligible employee with a serious health condition, or a family member with a serious health condition who needs the employee’s care, may use their CFRA or FMLA on leave on an intermittent basis as determined by the employee’s or family member’s healthcare provider. This includes absences that are not foreseeable, such as flare-ups of a chronic condition.

• Pro Tip: Make sure systems are in place for the employee to identify the absence as CFRA/FMLA leave, and to track the employee’s CFRA/FMLA hours. You cannot require employees to use CFRA/FMLA absences in amounts greater than one hour. If you track other employee absences in increments smaller than one hour, you must use the smaller time increment. This applies to both exempt and non-exempt employees.

  For example, if your system tracks employee absences in two-hour increments and an employee requests 30 minutes of family and medical leave to attend an appointment, the greatest amount you can charge from their CFRA/FMLA bank in that case is one hour.

Question: Can we require the employee to move to a different position that will better accommodate unforeseeable absences?

Answer: Not in our scenario above. Employers may not require a transfer when the CFRA/FMLA absences are unforeseeable, such as for flare-ups of a chronic condition.

However, when intermittent or reduced-schedule CFRA/FMLA leave is foreseeable based on planned medical treatment of the employee or the family member, an employer may require the employee to transfer temporarily to another position with equivalent pay and benefits, as long as the employee is qualified for the position and the transfer better accommodates the absences.

• Pro Tip: California’s Civil Rights Department’s CFRA medical certification form prompts the healthcare provider to indicate whether absences are foreseeable for planned treatment or appointments, as opposed to episodic. This is one of many good reasons to always use the official CFRA certification form.

Question:  Does the employee have to receive treatment from their healthcare provider each time they call out?

Answer:  Not in our scenario above. When the employee or family member is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition, they may take CFRA/FMLA leave for the absence, even if the employee or family member does not receive treatment by a health care provider during that absence.

Question: Most of the time, the employee’s call-outs occur on Fridays, Mondays, and the workdays on each side of a company holiday. This is making their manager and others suspect that the employee is abusing the use of CFRA/FMLA leave. What should we do?

Answer:  An employee’s dishonesty in connection with using intermittent CFRA/FMLA leave could be the basis for disciplinary action for violating company policies, but employers need to tread very carefully. Both laws provide employees with robust protection against employer interference with their use of leave and against retaliation for taking or requesting leave. The employer will have the burden of showing the employee has abused CFRA/FMLA leave, and recent federal court decisions indicate that failing to conduct an individualized impartial review prior to discipline can violate the law. Employers who suspect CFRA/FMLA abuse should consult qualified counsel.

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