Employment Law Tip for Illinois Employers #2: FMLA Intermittent Leave

The Family Medical and Leave Act of 1993 allows employees to balance their work and family responsibilities by taking unpaid leave for certain reasons. According to the Department of Labor, the FMLA is “intended to promote the stability and economic security of families as well as the nation's interest in preserving the integrity of families.”

The FMLA applies to any employer in the private sector who engages in commerce, or in any industry or activity affecting commerce, who has 50 or more employees each working day during at least 20 calendar weeks in the current or preceding calendar year. See, http://www.dol.gov/compliance/guide/fmla.htm.  For an employee to be eligible for FMLA leave, an individual must meet the following criteria:

- Be employed by a covered employer and work at a worksite within 75 miles of which that employer employs at least 50 people;
- Have worked at least 12 months (which do not have to be consecutive) for the employer; and
- Have worked at least 1,250 hours during the 12 months immediately before the date FMLA leave begins.
Id.

Employees may take FMLA leave intermittently or on a reduced leave schedule (that is, in blocks of time less than the full amount of the entitlement) when medically necessary or when the leave is due to a qualifying exigency. Employer approval is not required for intermittent or reduced schedule leave that is medically necessary due to pregnancy, a serious health condition, or the serious illness or injury of a covered service member. Employer approval also is not required when intermittent or reduced schedule leave is necessary due to a qualifying exigency.

Intermittent leave for the placement for adoption or foster care of a child or for the birth of a child is subject to the employer's approval.

Often times, Employers are unsure of how to treat particular employees who are frequently missing time at work, in full day increments or by the hour in the form of tardiness, for their children’s medical care. If your employee meets the above requirements, they are protected by the FMLA, and in all likelihood, tardiness or unexcused absences due to a child’s medical care would be considered FMLA intermittent leave.

To comply with the FMLA Intermittent Leave provision, “[w]hen an employee becomes aware of a need for FMLA leave less than 30 days in advance, it should be practicable for the employee to provide notice of the need for leave either the same day or the next business day. In all cases, however, the determination of when an employee could practicably provide notice must take into account the individual facts and circumstances.” 73 Fed. Reg. 68098. (Nov. 17, 2008). 73 Fed. Reg § 825.303(a), states that an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case. Specifically, “[i]t generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave.” 73 Fed. Reg. 68099. In either situation, employees must comply with their employers’ usual and customary notice and procedural requirements for requesting leave, lacking any unusual circumstances. See, 73 Fed. Reg. 68099 (setting forth section § 825.302(d) (“Complying with employer policy”) of the Final Rule); 73 Fed. Reg. 68100 (setting forth section § 825.303(c) (“Complying with employer policy”) of the Final Rule).

Therefore, where an employer’s usual and customary notice and procedural requirements for requesting leave are consistent with what is practicable given the particular circumstances of the employee’s need for leave, the employer’s notice requirements can be enforced. The FMLA provides a covered employee with 12 weeks of unpaid job-protected leave in a 12 month period. Employers should keep track of their employee’s FMLA time as it is used to ensure that proper records are kept. For more information on the FMLA or any further employment related matters, please contact Dana Perminas, at 312-334-3474 or dperminas@messerstrickler.com for more information.