Human Resource Blog

Intermittent, Unscheduled FMLA in Illinois

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One of our employees is pregnant and has severe morning sickness. She has come to work at our

Illinois company 2 or 3 hours late several times. She wants to use FMLA for that time, but I told her that FMLA only covers an entire day of leave, not a few hours here and there. I also told her that FMLA has to be scheduled in advance. Who is right?

In this case, your employee is right. Illinois is one of about 39 U.S. states with no maternity leave or state-mandated disability leave outside the federal FMLA, the Family and Medical Leave Act. (Ten of those 39 states do extend FMLA coverage to smaller companies, or to state employees. Illinois is not one of them.)

The FMLA allows an employee to take up to 12 weeks of unpaid, job-protected leave per year for a variety of personal or family reasons. Two of those reasons are the employee’s own serious health condition and the birth of a child.

FMLA applies to employees at locations with 50 or more employees, within a 75-mile radius. It also applies to all public agencies. The FMLA applies to all public and private elementary and secondary schools regardless of the number of employees.

As long as a company is covered by the federal FMLA law, there is nothing to prevent an employee from using the leave intermittently or sporadically. For example, if an employee was undergoing chemotherapy, he or she might be able to work – but only 6 hours per day, instead of the normal 8 hour shift. In that case, the employee could use FMLA leave for 2 hours per day, until he or she had exhausted a total of 12 weeks (or 480 hours) of leave in a 12-month period.

By the same token, if your employee has pregnancy-related nausea and vomiting so severe that she can’t work, she is entitled to take unpaid time off – even if it’s only partial days. You are well within your rights as an employer to request a doctor’s statement that she has a medical condition that limits the amount she can work. Once the employee has that, however, she can take off whatever hours she needs to. Because of the sporadic nature of this illness, she doesn’t need to “schedule” her time off in advance.

The time off work due to pregnancy complications – including morning sickness – counts towards the employee’s annual total. So, the total amount of leave that she can take under FMLA is still capped at the equivalent of 12 weeks per year. If the employee takes a total of 80 hours off due to morning sickness, she’ll only be able to take 10 weeks of leave, or 400 hours total, off when the baby is born.

If it’s any consolation, you are not the only one who is concerned about FMLA being used sporadically and intermittently. A recent U.S. Department of Labor report about FMLA cited that very issue as a top concern for employers nationwide. A number of people have pointed out that this was not the original intention of the FMLA. It’s possible that in the future, new legislation will address this issue.

However, at this time, any employee who is entitled to leave under the FMLA must receive it, even if it’s not a full day at a time. Just as a reminder, under the FMLA, employees are eligible if they have worked for the current employer at least 1,250 hours over the last 12 months. Under FMLA, employees receive up to 12 weeks of unpaid, job-protected leave for a variety of personal reasons. The employer must also maintain the employee’s health insurance coverage during that time.