Do You Have to Provide Employees Intermittent Leave?

If you have an employee with a disability or illness, you may already be aware that you are obligated to provide them some type of leave, or absence, or accommodation (depending on the situation and the applicable law that applies to that situation).

And if it is apparent that as part of an accommodation, an employee needs leave under any applicable federal law, you are probably ready to provide that leave.

But life doesn’t always work in such neat and organized ways—your employees may not just need to take a leave, and then reappear at work ready to go like nothing happened. In the real world, your employees may have illnesses, diseases, injuries or other illnesses, which require that they take intermittent leave—that is, they take their legally provided leave, but not all at one time, in one consecutive time block.

The Difficulties of Intermittent Leave

Intermittent medical leave can happen when an employee has an illness or a disability that is prone to “flaring up,” or with problems that tend to ebb and flow in severity over time. Often, the employee himself doesn’t even know if he or she is going to need time off in advance.

Intermittent leave can be very difficult for companies or businesses to plan for. When an employee says he or she needs a block of time, you can prepare for it. But when an employee needs a week now, comes back for a few days, then needs another week, then comes back for a month, then needs two more weeks, and so on, the planning for a business can be quite chaotic.

Yes, You Need to Provide Intermittent Leave

Both laws applicable to this situation, the Family Medical Leave Act (FMLA) and the Americans With Disabilities Act (ADA), require you to provide intermittent leave to employees whose disabilities or illnesses mandate such an accommodation.

Note that the FMLA requires that an employee, after or between leaves, can still perform his or her job duties, whereas under the ADA, the employee cannot perform the job, in the absence of the accommodation.

Under the ADA, If for some reason the intermittent leave creates a bona fide hardship to the function or operation of your business, it can be denied as an accommodation—but if that is the case, your business still must try to find another job position for the employee requesting the intermittent leave, presumably, a position where intermittent leave can be taken, without causing the disruption to the business’ operations.

It can be tempting to just claim that providing intermittent leave creates too much of a hardship—but the leave itself cannot form the hardship. Intermittent leave is, inherently, difficult for all businesses to accommodate. There must be something about the job or business that makes intermittent leave impractical, or impossible to provide, given the nature of the job.

Question about your employees’ rights? Let us help. Call the West Palm Beach business litigation lawyers at Pike & Lustig today.

Sources:

dmec.org/2019/09/16/is-intermittent-leave-a-reasonable-accommodation/

eeoc.gov/policy/docs/fmlaada.html