Human Resource Blog

Intermittent Unscheduled FMLA in South Dakota

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

South Dakota company 3 or 4 hours late several times. 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?

In this case, the employee is correct. The FMLA law permits workers to take their 12 weeks of unpaid and job-protected leave even in partial days. Unless a state has its own maternity leave or disability leave laws, it is covered primarily by the federal Family and Medical Leave Act.

South Dakota and 38 other states do not have their own laws. So your employee is correct. She is entitled to use the leave sporadically.

If she has nausea and vomiting serious enough to take time off, if it’s pregnancy-related, and if she has a doctor’s statement, she qualifies. She must also have worked for you at least 1,250 hours during the last 12 months in order to qualify. But once those qualifications are met, the leave may be taken either in full or partial days. You, in turn, have an obligation to make sure her company health insurance coverage does not lapse, during her FMLA leave, as long as she continues to pay the premiums.

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 childbirth and an employee’s severe health condition.

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.