For many employers, the intermittent leave provisions of the Family and Medical Leave Act pose the most difficult issues for providing leave entitlement while accomplishing necessary work tasks. Many companies are familiar with situations where employees request FMLA leave for unforeseeable medical conditions such as migraines. While these periodic absences may prove frustrating to accommodate, some employees may be entitled to a permanent restructuring of their positions to part-time based on intermittent FMLA leave rights.
In this scenario, the employee provides medical certification stating that due to a permanent serious health condition, they are unable to work a full shift, or cannot work overtime. The employee requests intermittent leave in the form of a reduced daily or weekly work schedule. If the employee continues to work 1,250 hours per year and does not exhaust the 12-week FMLA entitlement, this reduced hours arrangement becomes a permanent part-time job. Under the FMLA, the employee continues to be qualified for group medical insurance coverage, even if the reduction in hours would otherwise make them ineligible for this or other benefits.
In an opinion letter requesting clarification on this issue, the Department of Labor confirmed the use of FMLA intermittent leave to reduce an employee’s regular work schedule. Because FMLA leave is an entitlement, the employer cannot deny the leave on the basis that the job requires full-time work. In some circumstances, the employer may be able to transfer the employee to a different position at the same pay rate during the pendency of the FMLA leave.
Employers faced with requests for a permanent job restructuring may want to take advantage of the FMLA’s medical certification process to request a second (and possibly third) opinion on the employee’s ability to work a full-time schedule. The employer is also able to request a medical recertification every six months even if there is no apparent change in the employee’s condition. In the end, the FMLA provides some workers with a statutory right to require changes to their jobs to less than full-time status.
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