Human Resource Blog

FMLA and Intermittent Leave

My company provides 120 hours of paid sick leave per year and 120 (or more depending on seniority)of vacation per year. Employees are allowed to accrue sick leave with no maximum balance. Our policy is that FMLA runs concurrantly with available leave and employees are entilted to 12 weeks of FMLA (paid or unpaid).

If you have an employee with a qualifing medical condidition for intermitten leave that has exhausted all available paid leave (most due to FMLA covered absences) but continues to miss work due to various illnesses not covered by FMLA, can you discipline the employee? Are they entitled to additional leave without pay, if they claim the reason they have no leave was due to FMLA? FYI…they have not yet exhausted all of their FMLA leave. Also, we are disciplining other employees (without a FMLA condition) for entering into a leave no pay status due to continued absences related to non-qualifing illness.

As long as you are granting FMLA (intermittent or ongoing) only for a serious health condition, then you are well within your rights as an employer. There is no law that requires you to give an employee 12 weeks of unpaid FMLA, plus an additional 3 weeks of paid leave, for a serious health condition.

In this case, you have very generously given employees 120 hours of paid sick leave per year — the equivalent of 3 full weeks. That is more generous than 99% of employers. Employees are entitled to up to 12 weeks of job-protected leave for the employees serious health condition. Under the 2009 FMLA regulations, you must permit the employee to use their paid sick leave during FMLA. In some circumstances employees are also permitted to use paid vacation during FMLA. However, once the employee has exhaused all 12 weeks of FMLA, if they have no more paid sick leave available, you can discipline or terminate the employee for continued absences in many cases. (Be aware that if the employee has a disability, you may be required to give them more time off as a resonable accommodation under ADA.)

However, you cannot count every work absence as FMLA, even if the employee has no serious health condition. Suppose Josie takes three days off this week due to a common cold. A cold is not a serious health condition. Therefore, if you count this absence as FMLA, Josie will not have that time available when she has a heart attack. You are essentially depriving Josie of her rights under FMLA.

But if the employee genuinely has a serious health condition, you are not required to give them more than 12 weeks off. Suppose Suzie had cancer earlier this year. She used 10 weeks of FMLA, and was paid for 3 of those weeks as sick leave, plus an additional 3 weeks as paid vacation. Now Suzie needs to take additional time off because she is pregnant. She has only 2 more weeks of FMLA. After that point, you can discipline her for excessive absenteeism.

Note that some states have family leave laws that would change this answer — we addressed only the federal law here.