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Horton Law Firm Blog Intermittent Leave and Continuous Leave under the FMLA

 | Intermittent Leave and Continuous Leave under the FMLA

For South Carolina employees, the difference between intermittent leave and continuous leave under the FMLA (Family and Medical Leave Act) can be a confusing one to figure out. Especially since most employees are learning about FMLA leave while going through a physical or mental health crisis. And so now, on top of managing a recent cancer diagnosis, an approaching surgery, crippling depression, or other severe illness, the employee has to deal with HR or a third party company to figure out what leave applies to their situation and how to go about getting that leave approved.

I wrote about the basic rules for FMLA leave last year, which you can read about here, but I wanted to spend some time going over the differences between intermittent and continuous leave under the FMLA. (A reduced schedule FMLA leave is also available and will be discussed in a separate blog post later. But just note for now that such leave is an option to consider.)

A Quick Refresher on the FMLA

The Family and Medical Leave Act allows a qualifying employee to take up to 12 weeks of protected leave for a serious medical condition or to care for a close family member with a serious medical condition. Depending on the needs of the employee, this leave can be taken continuously or intermittently. Regardless of what type of leave you take, your doctor will need to fill out a Certification of Health Care Provider Form that outlines what type of leave you need and for how long. Once you request FMLA leave, your employee must provide you with this form to get fill out and returned. There are time limits, so you cannot delay in seeking out a doctor’s help in filling out the form. From there, your employer either approves the leave, seeks more information, or denies the leave.

FMLA leave is unpaid leave. The major purpose of the FMLA is to protect your job while you recover from your illness. But your employer is permitted to apply any accrued vacation time against your leave while you are out, so you would get paid during that period (although you’ll be without vacation time when you return). If you don’t have any accrued vacation time or PTO and the company does otherwise offer paid time off, then you are not entitled to pay during the leave. Often, though, you may be able to apply for short term disability during the same time period, which typically pays 2/3 or so of your weekly salary.

What Is the Difference Between Continuous and Intermittent Leave under the FMLA?

Continuous leave is just like it sounds: leave that continues for several days, weeks, or months without break. If an employee needs to be admitted to the hospital for a period of time, or the employee has a surgery that will require a significant amount of recovery time, then continuous leave may be best. This type of leave allows the employee to recover and heal without the stress of returning to work before they are ready.

Intermittent leave is for small periods of time that occur sporadically, sometimes without prior notice. Ongoing doctor’s visits that last a day or a few hours would fall into this category. Another common use of intermittent leave that I see is for flare-ups of medical conditions, such as severe migraines, rheumatoid arthritis, or complications from more serious diseases, such as MS. Outside of physical symptoms, intermittent leave may be helpful for employees suffering from mental health challenges, such as anxiety, depression, or panic attacks. If severe enough, intermittent leave can be applied for use on especially rough days. Most of these flare-ups, for whatever disease, can’t be easily predicted, but having intermittent FMLA leave approved can help employees navigate their employment obligations and their own physical and mental health.

Intermittent leave and continuous leave under the FMLA is normally tracked in total amount of hours. For employees working forty-hour workweeks, that would be up to 480 hours total of protected FMLA leave. But the actual number of hours you may be entitled depends on how many hours (including overtime) that you normally work.

What If My Company Refuses to Provide Me with FMLA or Fires Me Because I Request or Use FMLA Leave?

If you are qualified under the FMLA and your employer refuses to provide you with either intermittent leave or continuous leave under the FMLA, then you would have a legal claim against the company for interference with your FMLA rights. If the company retaliates against you for taking FMLA leave, you would have a retaliation claim. Or if the company refuses to return to you work after your FMLA leave ends, then that also violates the FMLA. A South Carolina employee can bring these claims in state or federal court and seek lost wages, lost benefits, liquidated (double) damages, and attorney’s fees and costs.

Also, be aware that the Americans with Disabilities Act often comes into play along with the FMLA, because a serious medical condition under the FMLA may also be a disability under the ADA. Even if your FMLA leave is ending, you may still be able to request additional unpaid leave as a reasonable accommodation under the ADA. Many companies do not understand the connection between the FMLA and the ADA, but the law is clear that taking FMLA leave does not prevent an employee from also seeking relief under the ADA. Many of the lawsuits I file on behalf of South Carolina employees will include both ADA and FMLA claims.

If your company violates your FMLA rights, you should speak with a South Carolina FMLA lawyer about your case in more detail. FMLA leave is confusing, but we can help explain and guide you through the process–and, if needed, sue to enforce your rights against a company that refuses to abide by the law.

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