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Intermittent FMLA in Colorado

Posted by Tamara

The Family and Medical Leave Act of 1993, commonly called the FMLA, guarantees workers in Colorado and the rest of the U.S. the right to as many as 12 weeks of unpaid, job-protected leave annually.

The time may be taken at the birth of a child or to address a worker’s serious health condition.

There is nothing in the FMLA as written, however, to prevent a worker from taking short bits of time off, say an hour in a day, sporadically, with no need to schedule it in advance.

This is called “unscheduled, intermittent” FMLA leave, and many argue that it was not the original intent of FMLA legislation. A new report from the U.S. Department of Labor addresses the issue, acknowledging that it has been listed by employers as one of their major concerns.

New FMLA legislation for 2009 changes now require employees to follow their companies’ reporting policies when taking time off under FMLA, including intermittent, unscheduled time off. Legislation may further address the problem in the future.

Any employee who has worked a minimum of 1,250 hours for a given employer in a single year is entitled to take FMLA leave. The employer must maintain the employee’s health insurance while the leave is being taken. “Job-protected” means the worker is guaranteed his or her job at the conclusion of the leave.

The implications of intermittent, unscheduled FMLA leave can be seen in a hypothetical example. Assume that a pregnant employee is suffering from severe “morning sickness” – nausea and vomiting so severe that she is unable to work. The nature of the ailment is such, of course, that she cannot schedule the time off in advance. Under the FMLA as it is now written, she may take off for short periods of time as often as she needs to, without advance notice, provided she does not exceed her 12-week maximum. However, her employer has the right to require a doctor’s certification that she has a serious health condition under FMLA.





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