Human Resource Blog

Intermittent Unscheduled FMLA in Kansas

One of our employees has been several hours late a number of times at our

Kansas company. She is pregnant and has severe 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?

If she meets the eligibility criteria, your employee is right. She is entitled to intermittent leave in segments of less than a day at a time, because Kansas is covered by the Family and Medical Leave Act.

The state is one of about 39 that do not have their own maternity or disability leave laws. So the federal law applies, and there is nothing in the federal law that says your employee or any other cannot take FMLA leave in blocks of less than a day at a time. And because of the nature of morning sickness, she need not schedule the time off in advance.

Compare it to the employee who is going through chemotherapy. That worker may only be able to work 6 hours every day, rather than the typical 8 hours. The FMLA time could be taken in units of 2 hours at a time.

In any case, your employee needs to show a doctor’s statement that she has a serious medical condition that may require time off, if you ask her for one.

She and all other employees protected by FMLA may take up to 12 weeks or 480 hours of the unpaid leave within a 12-month period. The time taken off during the pregnancy counts toward the total, just as the time after the birth. So, for example, if she takes 80 hours off because of the nausea and vomiting associated with morning sickness, she’ll only have 400 hours – or 10 weeks – of leave after the birth.

Many employers are concerned about their employees’ option to take this leave in segments of less than a day at a time. In fact, the U.S. Labor Department lists it as the number one issue among employers around the country. Some believe the original law was not intended for intermittent leave, and there is an indication that in the future the legislation will be rewritten to address the matter.

The Family and Medical Leave Act applies to all businesses with 50 or more employees with a radius of 75 miles. Employees must also have worked a total of 1,250 hours in the past 12 months to qualify for the leave. JH