Employers in Michigan and throughout the rest of the U.S. are asking why the Family and Medical Leave Act of 1993 allows workers to take what is called “intermittent, unscheduled” leave.

One of the most hotly-debated features of the FMLA is that there is nothing in the legislation to prevent a worker from taking his or her FMLA leave in short bursts, even an hour or two in a day, without scheduling it in advance.

The U.S. Department of Labor has issued a 182-page report acknowledging the problem and noting that unscheduled, intermittent FMLA leave is one of the major concerns of employers.

FMLA regulations for 2009  now states that an employee taking FMLA leave must follow his or her company’s customary reporting procedures. It applies even for intermittent, unscheduled leave.

Many critics of the FMLA as it is now structured say that it was not the original intent of the legislation to allow for intermittent, unscheduled leave. The Act guarantees a worker a maximum of 12 weeks of job-protected, unpaid leave annually. “Job-protected” means that an employer is prohibited from hiring a permanent replacement for an employee who is on FMLA leave.

FMLA leave is granted for personal and family reasons. Two of those reasons typically are a worker’s serious health condition and the birth of a child. All workers are eligible, provided they have worked for their current employer for a minimum of 1,250 hours in the past 12-month period.

It is helpful to consider a hypothetical example when considering the possibility of unscheduled, intermittent leave. Assume that an employee has pregnancy-related nausea and vomiting (“morning sickness”) which is serious enough that she is unable to work during those spells. Because of the nature of the condition, time off cannot be scheduled, and it is not likely to require more than an hour or two of leave at a time. She has the right to use FMLA leave. The employer may require that she produce a doctor’s statement. If she uses the equivalent of two weeks’ leave, she has only 10 weeks remaining when her baby is born.

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This entry was posted on Thursday, December 10th, 2009 at 3:14 am and is filed under FMLA - Family Medical Leave Acts, Labor & Employment Laws. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.