FMLA Notice for Intermittent Leave or Reduced Work Schedule
This article explains the employer’s obligations for federal Family and Medical Leave Act (FMLA) notice procedures when an individual takes intermittent leave or has a reduced work schedule.
Under the FMLA, an employee is entitled to take intermittent leave or work a reduced work schedule if the employee’s health care provider certifies that the employee’s serious health condition necessitates the leave or modified work schedule. For example, a health care provider may certify that Joe needs four hours of intermittent leave each Wednesday for treatment. The individual’s factual situation determines how often his employer must give FMLA notice.
Regulations on Notice
CFR §§ 825.301 and 208
Within a reasonable period of time (one or two business days after an employer learns of an employee’s need for leave, if feasible), the employer must provide notice to the employee that it will count leave taken against the employee’s FMLA leave entitlement. The employer must provide this notice at least once, at the first of each six-month period in which the employee takes leave. However, if any of the required notification procedures disclosed in the original notice change, the employer must provide new notice that references the original notice and discloses such changes.
If the employee is entitled to paid leave, the employer must designate in writing whether it will count the paid leave as FMLA leave (see Tips to Employers No. 3).
Following are some examples of how this notice requirement would apply to intermittent or reduced schedule leave.
Examples Where “No Notice is Required”
In the following examples, the FMLA would not require the employer to provide more than one notice at the beginning of each six-month period in which leave is taken.
Examples Where “Notice is Required”
In the following examples, the employer must provide additional notice to the employee that leave is being counted toward his or her FMLA leave entitlement, and must specify any changes being made in relation to the original notice.
Tips to Employers
1. Accurate recordkeeping is essential. The employer should assign a management employee to make all FMLA eligibility determinations, send the proper notices, and maintain the records.
2. When the regulations do not require additional notice for intermittent leave or a reduced work schedule, the employer may want to provide the employee with reasonable notice before he or she exhausts his or her total FMLA leave entitlement. For example, due to many reasons, Mary, in Examples #2 and #4, has used all of her FMLA leave entitlement except for eight hours. It is prudent for the employer to notify Mary that she now only has eight hours of FMLA leave remaining. This notice can prevent disputes over absenteeism at a later date, especially if the employer has a no-fault attendance policy and will count absences after Mary’s FMLA entitlement ends against her for disciplinary purposes.
3. The U.S. Department of Labor’s regulations conflict regarding when to give FMLA notice if an employee is eligible for paid leave. Employers may want to periodically advise employees who are taking paid leave what their status is in regard to the company’s paid leave policy and their FMLA eligibility. For example, an employer may have a salary continuation policy that changes to a short/long-term disability insurance policy after a specific time period has elapsed. Prior to the salary continuation ending, the employer’s notice would advise the employee of his or her paid leave status and remaining FMLA eligibility. The notice would also provide the summary plan description information and the insurance forms that the employee needs to submit in order to maintain eligibility for the short/long-term disability benefits.
 29 CFR §§ 825.301(b)(1) and 208(a)
 29 CFR § 825.301(c)
 29 CFR § 825.301(c)(1)
 29 CFR §§ 825.208(b)(1) and (2)
 See Footnotes 1 and 3
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028