Human Resource Blog

Unscheduled FMLA in Colorado

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One of our employees is pregnant and has missed several days of work due to severe morning sickness. She has also been 2 or 3 hours late several times, for the same reason. She wants to use FMLA for that time, but I told her that FMLA can only be taken for full days, and must be scheduled in advance. Who is right?

You may not like this answer. But your employee is right. If you don’t like it, you are just one of many employers who feel this way. The U.S. Labor Department has said that intermittent leave time is the chief concern among employers throughout the country. Some believe that the law was not originally intended to include sporadic leave, and expect that the legislation will be rewritten to correct that.

The federal Family and Medical Leave Act law applies to all states that do not have their own maternity leave or disability leave laws. Colorado is one of about 39 that have not enacted their own laws. So the FMLA applies, and there is nothing within the FMLA to prevent a worker from taking the 12 annual weeks of job-protected and unpaid leave in segments shorter than a day at a time.

The FMLA covers all public agencies. It applies to employees at sites with 50 or more workers within a radius of 75 miles. And it applies to elementary and secondary schools, both private and public, whether the number of employees is more or less than 50.

Your employee must meet certain eligibility criteria. She must have nausea and vomiting so severe that it requires time off. She must have a doctor’s statement. And she must have worked for you for at least 1,250 hours during the past 12-month period. You, in turn, have an obligation to make sure her company health insurance coverage does not lapse.

Employees who meet the criteria are entitled to the leave for varied personal or family reasons, including childbirth and the worker’s own health conditions.

Your employee’s situation could be compared to the worker who needs chemotherapy. That worker may need to be absent 2 hours out of every 8-hour shift. He or she could use the FMLA leave in 2-hour segments daily.