Is Intermittent Leave a Reasonable Accommodation?
By Megan Holstein, JD
SVP Absence and Disability Claims
The Americans with Disabilities Act (ADA) requires employers to provide an otherwise qualified disabled employee with a reasonable accommodation that will enable the employee to perform the essential functions of their position. Over the last decade, a continuous leave of absence has been widely recognized as a possible accommodation for employees in certain circumstances. As the Equal Employment Opportunity Commission (EEOC) continues to enforce that leave is a valid ADA accommodation, the question remains as to whether employers must allow intermittent leave as an accommodation.
Intermittent Leave vs. Continuous Leave
Intermittent leave is a different animal than continuous leave. Employees take continuous leave in large blocks of time, often weeks or months in a row. In many cases, continuous leave is foreseeable, and employers and employees can plan in advance to have the essential job functions covered during the employee’s continuous absence. Intermittent leave is unpredictable and utilized when an employee’s condition flares up or disability-related reasons such as medication side effects cause the employee to miss work on an unpredictable basis. Because of the unpredictability of intermittent leave, employers find it hard to tolerate or accommodate it for an extended period of time.
The FMLA Requires Intermittent Leave
An employee may take FMLA leave of absence intermittently for the employee’s or family member’s serious health condition; a serious injury or illness of a covered servicemember; or for a qualifying exigency. There must be a medical necessity in order to take FMLA leave intermittently. The medical necessity must be a medical need that can best be accommodated through an intermittent or reduced leave schedule. Medical necessity can be determined through the use of a medical certification.1 An employee approved for intermittent or reduced schedule leave must still be able to perform the essential functions of the employee’s job when the employee is at work and not on leave.
There are various strategies to tightly manage intermittent leave under the FMLA, such as enforcing an employer’s attendance and absence reporting policy, require a completed certification and manage to the certification’s frequency and duration.2 Employers should also use the FMLA’s clarification, authentication, and recertification provisions.3
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