Human Resource Blog

Intermittent FMLA in Mississippi

	Attendance Management
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	Benefits
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One of our employees has severe morning sickness. She has come to work at our Mississippi 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. Who is right?

Your employee has a point. The federal FMLA, the Family and Medical Leave Act, provides up to 12 weeks of unpaid leave for personal or family reasons, including pregnancy and childbirth. Since Mississippi has no maternity leave or state provided disability leave, the FMLA applies.

You have a point, as well. According to the U.S. Department of Labor in a recent report on FMLA, employers across the nation are questioning charging intermittent leave to FMLA, stating that periodic use isn’t the original intention of the law.

Nothing in the federal FMLA, however, prevents an employee from applying the law to sporadic use of leave. Each occurrence of time off, though, does account toward the 12 week total. Say an employee is undergoing long-term treatment, such as chemotherapy, and can still work every day, but not the entire eight hours. FMLA could be used for the time off until the total reached 480 hours, or 12 weeks.

Similarly, your employee can take partial days to contend with her pregnancy-related nausea. Whatever time she takes off is subtracted from her 480 hour total. For example, morning sickness takes 2 hours out of every day for 8 weeks for a total of 80 hours. The employee is then left with 400 hours or 10 weeks to take off to care for the infant after childbirth.

As an employer, you can request written confirmation from the employee’s doctor that she must take time off for a medical condition. Once the employee provides the doctor’s statement, however, she may take the time she needs when she needs it. Prior notice of taking time off wouldn’t be required.

Not every employee or every company is eligible for FMLA. Elementary and secondary schools, whether public or private, are automatically covered, as are public agencies. Otherwise, companies must employ 50 or more workers within a 75 mile radius of one work site. Those workers must then work at least 1,250 hours in a twelve month period for that employer to be eligible. JH