Intermittent Leave – The Headache With Some Cures

Earlier this week, I presented “Leave it to the Lawyers: Navigating the Maze of Employee Leave Laws” at our firm’s Labor & Employment Fall Seminar at Hotel Marcel. Along with my colleagues Sarah Niemiroski and Claire Pariano, we tackled the alphabet soup of FMLA, CT FMLA, PFMLA, PSL, and ADA requirements.

It was so great to see everyone in person; we had a full house and I loved hearing from people about how they really enjoyed the presentations. As much as I enjoy doing webinars, the in-person programs are more meaningful than ever.

One topic generated more questions than any other: intermittent FMLA leave. Unlike continuous leave, intermittent leave allows employees to take FMLA protection in smaller increments to manage chronic conditions like migraines, diabetes flare-ups, or ongoing treatments. For employers, it’s harder to plan around, more difficult to track, and unfortunately, more susceptible to misuse.

Here are three critical strategies from our seminar discussion and the people who approached me afterwards.

1. Get Complete Medical Certifications (And Seek Clarification When Needed)

The biggest mistake employers make is accepting vague certifications that simply say an employee needs “periodic absences” without specifics.

What certifications should include:

• Frequency of leave needed (e.g., “2-3 times per month”)
• Probable duration of each absence (e.g., “4-8 hours per episode”)
• Whether the condition is episodic or requires scheduled treatment

If the certification is incomplete, send it back for clarification. You’re not asking for a diagnosis — you’re asking for practical information to manage your workforce.

Seminar question: Can you require employees to provide a note for each absence? No. Once you approve the intermittent leave, employers should not be requiring a note for each absence. That’s why it’s important to review the certification ahead of time.

2. Hold a Pre-Leave Expectations Meeting

After approving intermittent leave, schedule a meeting to ensure everyone understands the rules.

Cover these topics:

• Call-in procedures for FMLA-protected absences
• How to properly report intermittent leave
• The approved frequency and duration from their certification
• Consequences for using leave beyond what’s certified
• Your policy on substituting paid time off

Document the meeting with a written summary for the employee. This creates a paper trail and helps protect against later claims of confusion.

Seminar question: What about employees who call in sick without mentioning their FMLA condition? Remember that employees don’t need magic words. If someone with approved intermittent leave for migraines calls in saying “I’m not feeling well,” a trained manager should inquire whether it’s related to their approved condition.

3. Track Meticulously — But Recertify Only for Objective Reasons

Track intermittent FMLA usage down to the minute using a centralized system. Monitor for patterns that might suggest misuse, such as absences consistently clustered around weekends or holidays.

However, don’t automatically request recertification just because you’re suspicious. Use common sense and look to objective, documented reasons for support.

Some reasons for recertification:

• Circumstances changed significantly (approved for two absences monthly but now absent weekly)
• Information casting doubt on the condition’s validity
• Minimum duration in the original certification has passed

Seminar discussion: Employers want tools to address suspected abuse, but recertification isn’t a fishing expedition. Better approach: consistent tracking plus clear policies about what happens when employees exceed certified parameters.

The Bottom Line

Intermittent FMLA doesn’t have to be an administrative nightmare. With complete certifications, clear expectations, and meticulous tracking, you can balance business needs with legal obligations.

The engagement at our seminar confirmed that employers across industries face the same challenges. If you missed the event or want to discuss your specific intermittent leave issues, reach out.

For more on FMLA compliance, stay tuned for an upcoming episode of our “From Lawyer to Employer” podcast.