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socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 38803
Experience:  Retired (mostly)
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We have an employee that wants to take intermittent FMLA leave

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We have an employee that wants to take intermittent FMLA leave after the birth of his son. Aren't the employee and the employer supposed to work together to develop a work schedule or does the employee get to just "tell" the employer when they'll be in to work?
Hope does this fit with California's Family Leave?
Subject to several exceptions (below), where the need for a leave is foreseeable (e.g., for a planned, nonurgent medical procedure or for the birth of a child), an employee must provide the employer with at least 30 days notice of the need for leave, the reason and dates. 29 USC § 2612(e)(1),(2)(B); 29 CFR § 825.302(a); see Spangler v. Federal Home Loan Bank of Des Moines (8th Cir. 2002) 278 F3d 847, 851.

Even though a leave is foreseeable, 30 days' notice is not always possible (e.g., date of birth or adoption is indefinite or circumstances require change in timing of leave). In such instances, the employee must provide notice “as soon as practicable.” 29 USC § 2612(e)(1), (2)(B); 29 CFR § 825.302(a); see Hopson v. Quitman County Hosp. & Nursing Home (5th Cir. 1997) 119 F3d 363, 367 (changed surgery date due to insurance considerations and employee gave notice as soon as aware of situation; Spangler v. Federal Home Loan Bank of Des Moines, supra, 278 F3d at 851.

“As soon as practicable” will normally mean within one or two business days of when the need for leave becomes known. 29 CFR § 825.302(b).

Concerning the effect of the California Family Rights Act (CFRA), federal regulations preempt state law, consequently, to the extent that the FMLA and CFRA provide identical benefits, California courts will follow federal regulation in interpreting the CFRA.

Hope this helps.
Customer: replied 4 years ago.

No, actually it didn't. Your answer applies to the BIRTH not after the kid is born.


How do I apply INTERMITENT Leave? The employee wants to run out their 12 weeks of FMLA intermittently. How do we manage that?

Is the employee calling all the shots or does the employer have some say since we're trying to run a business and we can't have people coming and going as they please.

The bolded type in your reply suggests that you are angry with me. I hope this is not so.

I had no idea from your original post that your question was related to pregnancy or child birth. Consequently, the regulations that I previously cited apply to all types of FMLA/CFRA leave.

There are three defenses to the employee's right to leave: there are no others (except for key employees, which I doubt is the situation here):

  1. An employer may delay reinstatement where an employee has taken CFRA leave because of his or her own serious health condition and fails to provide a fitness-for-duty certification pursuant to the employer's request. 2 Cal.C.Regs. § 7297.4(b)(2)(E).
  2. Reinstatement may be denied if it turns out that the employee would not have been employed at the time reinstatement is requested (e.g., position eliminated). 2 Cal.C.Regs. § 7297.2(c)(1) (Like under the FMLA, an employer bears the burden of proof on this issue.)
  3. An employee is not immunized from layoff while on family leave. The CFRA's guarantee of reinstatement does not preclude an employer from terminating the employee as part of a company-wide reduction in force. [Tomlinson v. Qualcomm, Inc. (2002) 97 CA4th 934, 939–943, 118 CR2d 822, 826–828 (upholding 2 Cal.C.Regs. § 7297.2(c)).


I realize that this may place you in a difficult scheduling position -- and that the employee appears to be controlling the situation. Unfortunately, that is simply the way the law is written and interpreted. So, unless you can fit the employee within the above-described exceptions, then if the employee has a valid intermittent need for leave, then you cannot terminate the employee for taking leave -- or you risk legal action by the employee for violation of her rights.


Please don't shoot the messenger. I'm doing the best I can to explain the law. If you need further assistance or clarification, please let me know.

Customer: replied 4 years ago.



The employee wants to do something like take Monday and Tuesdays for FMLA every week for 12 weeks, and work Wednesdays through Fridays. They aren't being "reinstated" because they never left for a period of time, so to speak (they would be at work every week).


I'm just trying to find out if we have to accept his request for Mondays and Tuesdays or can we say, this week that's OK but next week we need you on those days so take Friday and Saturday.


Believe it or not, I have just discovered an exception related to intermittent leave that will probably make you quite happy. Title 29 Code Fed. Regs. 825.120(b) provides:

  • An eligible employee may use intermittent or reduced schedule leave after the birth to be with a healthy newborn child only if the employer agrees. For example, an employer and employee may agree to a part-time work schedule after the birth. If the employer agrees to permit intermittent or reduced schedule leave for the birth of a child, the employer may require the employee to transfer temporarily, during the period the intermittent or reduced leave schedule is required, to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee's regular position. Transfer to an alternative position may require compliance with any applicable collective bargaining agreement, federal law (such as the Americans with Disabilities Act), and State law. Transfer to an alternative position may include altering an existing job to better accommodate the employee's need for intermittent or reduced leave. The employer's agreement is not required for intermittent leave required by the serious health condition of the mother or newborn child. See §§ 825.202 through 825.205 for general rules governing the use of intermittent and reduced schedule leave. See § 825.121 for rules governing leave for adoption or foster care. See § 825.601 for special rules applicable to instructional employees of schools.


In other words, if the leave is being taken for a reason other than a serious health condition related to the employee or child, then you as employer can control the employee's schedule.


Hope this helps.

socrateaser and 2 other California Employment Law Specialists are ready to help you
Customer: replied 4 years ago.

Thank you - that definitely helps!