Human Resource Blog

Unscheduled Intermittent FMLA in Idaho

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We have one employee who is trying to abuse FMLA at our Idaho plant. She has come to work 2 or 3 hours late several times, due to excessive morning sickness. She wants to use FMLA for that time, but I told her that FMLA only covers and entire day of leave, not a few hours here and there. Who is right?

Intermittent leave is allowed under the federal FMLA, so your employee is right. Idaho is one of about 39 states that, because they do not have their own maternity leave or disability leave laws, are covered by the federal law. And if your company is covered by the federal Family and Medical Leave Act, the employee is entirely within her rights to take that time in sporadic segments of less than a day at a time.

You are just one of many employers who may not like to see employees using FMLA leave in partial days at a time. The U.S. Labor Department, in fact, has said it is the major concern of employers around the country. The law was not originally intended to allow for intermittent leave, say some, and future legislation may address the matter, it is believed.

The FMLA applies to any workers at business locations with 50 or more employees within a 75-mile circle. It also applies to public agencies, and it applies to public and private secondary and elementary schools, no matter how many or how few employees they may have.

The FMLA guarantees a maximum of 12 weeks of job-protected and unpaid leave every year. The reasons may vary, and may include personal and family issues. Among the reasons are a childbirth and an employee’s severe health condition.

Your employee must meet certain eligibility criteria. She must have worked for you at least 1,250 hours during the past 12 months. She must have a statement from her doctor, and the pregnancy-related nausea and vomiting must be so serious she can’t work.

Once those criteria are met, she is covered by the FMLA. You and she should both know, however, that the time she takes off during the pregnancy counts toward her total time. So if she takes, for example, 80 hours off during pregnancy she is left with only 400 hours (or 10 weeks) of allowable time off once the baby is born. You as the employer must keep up her health insurance coverage during this period.