Can Employer Deny Intermittent FMLA Leave (1)

Can an Employer Deny Intermittent FMLA Leave?

The FMLA provides job security to employees who need to skip work due to issues like the pregnancy, health conditions, taking care of family members etc. However, it is often a vexing issue. Employers often complain about FMLA abuse by employees. Employees too sometimes complain about issues related to non-sanction of FMLA. However, employees usually face problem regarding intermittent FMLA leave. It is the proverbial thorn in the flesh for employees. Complying with Intermittent FMLA leave is also a vexatious issue for employers. Many employees are concerned about whether the employer can deny intermittent FMLA leave or not.

Your Entitlement to Intermittent FMLA Leave

FMLA guarantees a maximum of 12 weeks of unpaid leave in a year. However, there are some conditions that an employee needs to fulfill to be eligible for intermittent FMLA leave as well as FMLA leave in one block. There has to be an element of “medical necessity” either on your part or on the part of some of your family members.

The leave can be granted on an intermittent basis. It has been described as a series of absences arising out of the same medical reason. All of these intermittent leaves need to be taken within a twelve month period, and not necessarily in a calendar year.

Such leave can be in the form of taking a few half-days off during a week. It can also be in the form of skipping an hour or two to take care of a sick child either to stay at home with the child in case the child is unable to attend school or to take the child to the doctor. It may also include time needed for undergoing cancer treatment like chemotherapy and take rest to overcome the resulting fatigue. Whichever way and for whatever reason, you take an intermittent FMLA leave, the leave taken is deductible from his or her total entitlement of 12 weeks.

Can The Employer Deny An Intermittent Leave?

Like FMLA leave taken in a block, you do not require employer’s consent for intermittent FMLA leaves taken for medical necessities like pregnancy, serious health conditions of self or family member, or serious health conditions or injury of a service member in the family. However, you need employers’ approval for securing intermittent leaves for things like the adoption of children. Moreover, intermittent FMLA leave sought for child care after the birth of a child for which FMLA leave has been taken or the placement of an adopted child needs the approval of the employer. 

In the updated rules for intermittent leave under FMLA, the term “serious condition” regarding health has undergone a change. It now states that a serious health condition under the ambit of FMLA involves at least three full, consecutive days of disability and at least two visits to the health care provider. Moreover, these two visits should take place within 30 days from the start of the period of inability.


This shows that though the employer cannot deny an intermittent FMLA leave in general, the new and updated rules have empowered employers to ask for clarifications and deny leave if there is no really serious health condition.


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