1-32 29 CFR § 825.203. Scheduling of Intermittent or Reduced Schedule Leave
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 service member. 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.
1-32:1 Commentary
1-32:1.1 Continuous Versus Intermittent FMLA Leave
An issue that has arisen is whether an employer may require an employee to take continuous FMLA leave, even if the employee prefers intermittent leave. One Texas court holds that it cannot.
• Brock-Chapman v. Nat'l Care Network, L.L.C., No. 3:10-CV-454-B, 2013 WL 169177 (N.D. Tex. Jan. 16, 2013) (court rejects argument that there is no prejudice in this circumstance because plaintiff received all leave to which she was entitled; court holds that such a requirement may constitute an interference claim if accompanied by prejudice to the employee in terms of the employee later wanting to take protected FMLA leave but having none to take).
An issue that occasionally arises is whether an employee on intermittent leave is limited to the precise frequency and duration stated in the certification. It is not.
• Hansen v. Fincantieri Marine Grp., LLC, 763 F.3d 832 (7th Cir. 2014) (collection of cases rejecting the argument that the estimates in the certification act as limitations on the frequency and duration for which an employee may be entitled to intermittent leave under the FMLA; interesting discussion of whether a medical certification is inadmissible hearsay (it isn't)).
While it would seem apparent, an employee is not entitled to intermittent leave if the certification says that he is not, and an employer is not required to explore an employee's entitlement any further.
• Beem v. Providence Health & Servs., No. CV-10-0037-JLQ, 2011 WL 4852301 (E.D. Wash. Oct. 13, 2011) (plaintiff incurred numerous tardies as a result of various medical conditions including morbid obesity and thyroid irregularities; health care provider stated in certification that plaintiff did not need to work intermittently or on a reduced schedule; court characterizes this situation as a "negative certification" and holds that employer is not required to seek a second opinion and may rely upon certification).
• Nawrocki v. United Methodist Ret. Communities, Inc., 174 F. App'x 334 (6th Cir. 2006) (medical certification stated that plaintiff had a serious health condition but also that absence from work was not required; court held that e "contradictory medical certification relegated it to a negative certification" that required no action by the employer).
1-32:1.2 Recertification
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