By Sandro D. DiMercurio, Esq.

As an employer, do you find that your employees are conveniently taking intermittent leave on Fridays or Mondays or both, in an effort to extend their weekend?  Do you ever feel that your employees are taking advantage of their intermittent leave?  This article will detail what an employer can do to protect its interests without running afoul of the Family and Medical Leave Act (“FMLA”).

The Department of Labor (“DOL”) defines Intermittent Leave as “FMLA leave taken in separate blocks of time due to a single qualifying reason.”  29 C.F.R. § 825.202(a). In essence, intermittent leave is a sequence of absences that can occur without warning and at any time, which can be difficult to manage.

Employers should first verify whether the employee is eligible for intermittent FMLA leave.  According to the DOL,

“an eligible employee is one who

(1) works for a covered employer;

(2) has worked for the employer for at least 12 months;

(3) has at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave; and

(4) works at a location where the employer has at least 50 employees within 75 miles.”

If an employee does not meet these requirements, he/she is not entitled to intermittent leave under the FMLA. But even if the employee meets these requirements, he/she must still have a medical need for the intermittent leave for his/her own “serious health condition” or to care for a covered family member.

Next, an employer can require the employee’s healthcare provider to provide it with a certification verifying the employees “medical need” for intermittent leave. If the employee fails to submit the certification, then the intermittent leave request may be denied.  Once the employer receives the certification, it should review its contents thoroughly for any deficiencies. If the answers are blank, incomplete, vague or ambiguous, then the certification is insufficient, and the employer should give the employee seven days to correct it. If the employee fails to do so, the employer can deny the FMLA request.

Assuming the employee fixes the deficiencies of the certification or submits a proper certification, the employer’s options do not end there. The employer may require a second opinion from one of its own healthcare providers (at its own cost). If the opinion of the employer’s healthcare provider differs from that of the employee’s healthcare provider, the employer can pay for a third and final opinion, which will be binding.  However, keep in mind that the employer can request recertification every 30 days.

A few tips to prevent fraud or abuse of intermittent leave include:

  • Track the employee’s intermittent leave since he/she is only entitled to 12 weeks under the FMLA, regardless of the doctor’s estimations;
  • Require employees to call in for each day absent and ask for detailed information regarding the sickness;
  • Provide the employee’s doctor with his or her job description; and
  • Require absent employees to call in periodically throughout the day.

For more information on FMLA or other employment matters, please contact Sandro D. DiMercurio at 313-496-1200 or, or a member of Berry Moorman’s Labor & Employment Law Practice Group.