Introduction
The Family and Medical Leave Act (FMLA) is one of those workplace laws that almost everyone’s heard of—but few really understand until they’re knee-deep in paperwork, doctor’s notes, and questions about what counts as “serious.” And among the most misunderstood areas? Intermittent leave.
Whether you’re representing a clinic juggling nurse schedules or advising a worker managing migraines or caregiving duties, intermittent FMLA leave is where things get tricky. It’s flexible by design, but that flexibility can also create confusion and conflict on both sides of the employment relationship.
What Is Intermittent FMLA Leave?
First, the basics. The FMLA, 29 U.S.C. § 2601 et seq., allows eligible employees to take up to 12 weeks of unpaid, job-protected leave per year for qualifying reasons:
- A serious health condition;
- To care for a spouse, child, or parent with a serious health condition;
- Birth or adoption of a child;
- Certain military-related events.
Not all leave is taken in one big chunk. The law also allows intermittent leave—that is, leave taken in small blocks of time instead of all at once. This can include:
- A few hours off each week for physical therapy;
- A couple of days a month for flare-ups of a chronic condition;
- Half-days to care for a sick parent after chemotherapy.
Under the FMLA regs at 29 C.F.R. § 825.202, intermittent leave is permitted when medically necessary, especially for chronic conditions like asthma, diabetes, or migraines.
When Is Intermittent Leave Allowed?
Intermittent leave isn’t automatic. It’s generally permitted when:
- The employee (or a covered family member) has a serious health condition.
- The condition requires periodic treatment or unpredictable episodes.
- The health care provider certifies that intermittent leave is medically necessary.
It’s also allowed in some cases for military caregiver leave and qualifying exigencies related to military service. However, for bonding time with a newborn or adopted child, intermittent leave is only allowed if the employer agrees—so there’s more discretion there.
Pregnancy, Prenatal Appointments, and Intermittent Leave
The FMLA regulations are explicit about a pregnant employee’s right to take intermittent leave. The U.S. Department of Labor states:
“A pregnant employee may take FMLA leave for incapacity due to pregnancy, for prenatal care, or for her own serious health condition following the birth of a child.”
—29 C.F.R. § 825.120(a)(4)
This means an employee can take time off, for example:
- A few hours for routine OB/GYN check-ups,
- Half-days for ultrasounds or other prenatal testing,
- Time off for complications like severe morning sickness or other pregnancy-related health issues.
This leave can start before the baby is born and does not require the employee to be entirely unable to work. That’s the power of intermittent leave: it can be tailored to meet real medical needs as they arise.
The Certification Process
Before granting intermittent leave, employers can (and should) require a medical certification from a health care provider, using the DOL’s Form WH-380‑E for the employee’s own condition or WH-380‑F for a family member’s condition. These forms ask for:
- Diagnosis and treatment plan;
- Whether intermittent leave is needed;
- The likely frequency and duration of episodes.
Employers can seek clarification (not second opinions unless the form is incomplete) and may request recertification periodically under 29 C.F.R. § 825.308—typically every 30 days if the condition is ongoing.
An open-ended certification (“as needed” or “ongoing”) isn’t ideal—try to get a frequency estimate.
Also, courts sometimes uphold employer discipline if an employee exceeds certified frequency without medical updates.
Managing Scheduling Challenges
This is the big concern for employers—especially in healthcare, where coverage is critical. An RN missing a few shifts per month due to migraines? Manageable. A radiology tech gone at unpredictable intervals? Less so.
Employers can’t deny intermittent leave if it’s medically necessary, but they can:
- Require employees to schedule foreseeable treatment to minimize disruption (see 29 C.F.R. § 825.203);
- Temporarily transfer employees to an alternative position with equivalent pay and benefits that better accommodates the leave;
- Enforce call-in procedures—as long as they’re consistent with other leave policies.
And yes, you can discipline employees who fail to follow notice rules or use leave improperly—so long as the discipline isn’t retaliatory.
Can Employers Request Recertification?
Absolutely. Under 29 C.F.R. § 825.308, employers may seek recertification:
- Every six months for ongoing conditions;
- If the employee requests an extension;
- If there’s a significant change in frequency or pattern;
- Or if you suspect abuse (e.g., leave always falling on Fridays).
West Virginia employers should document these requests thoroughly and avoid overstepping—recertification isn’t a fishing expedition, and overly aggressive requests can backfire.
Common Employer Mistakes
- Treating intermittent leave as unexcused absences.
If the absence is FMLA-protected, you can’t count it under your attendance policy. - Failing to designate FMLA leave properly.
Employers must notify the employee that time off is being counted against their FMLA entitlement (within five days of learning it qualifies). - Not tracking time accurately.
Intermittent leave must be tracked hour-by-hour (or in the smallest increment the employer uses for timekeeping, no more than one hour). - Retaliation.
Don’t dock bonuses or take disciplinary action because someone used FMLA leave—even if it’s disruptive.
What Employees Should Know
If you’re representing an employee considering intermittent FMLA:
- Get a clear medical certification and keep it updated.
- Follow employer policies for calling out or requesting time off.
- Don’t abuse the system—suspicious patterns (like all leave falling on Mondays) may invite scrutiny.
- Know your protections—employers can’t retaliate or penalize you for using FMLA.
West Virginia Considerations
West Virginia doesn’t have its own family leave law (beyond limited protections for state employees), so the federal FMLA is the main game in town. That means private employers with 50 or more employees within 75 miles are covered, and eligible employees must have:
- 12 months of service, and
- 1,250 hours worked in the past year.
Smaller private employers aren’t bound by the FMLA—but may still want to adopt flexible leave policies to stay competitive.
The FMLA also applies to state and local employees, without regard to how many employees a particular governmental entity has.
Final Thoughts
Intermittent FMLA leave is one of those areas where compliance meets real-world logistics. It’s meant to accommodate genuine medical needs without costing someone their job. With good documentation, clear communication, and fair enforcement of the rules, both sides can make it work.
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