For many benefits pros, intermittent FMLA leave can be burdensome, but now it’s even more complex as to when to allow employees to take the incremental time off under the new Families First Coronavirus Response Act (FFCRA).
During the pandemic, the DOL is encouraging firms to be flexible in allowing employees who have children at home the intermittent time off.
However, business needs (such as covering shifts and having staff available to respond to customers) can outweigh employee concerns.
“Employers need to carefully evaluate and balance many important competing interests,” said Marjory Robertson, senior counsel at Sun Life Financial.
Under the FFCRA, intermittent FMLA can be granted and taken in full-day increments, if the employer agrees, to an employee who is:
• teleworking, or
• physically at the workplace, but needs to care for a child whose school or place of care is closed or whose child care provider’s unavailable.
The FFCRA gives firms “significant leeway” to either approve or deny an intermittent schedule for a worker requesting leave, said Robertson. However, firms need to be consistent when denying leave and document the business reason for the denial to avoid any discrimination lawsuits.
For example, denying intermittent leave under FFCRA because an employee is nonexempt is reasonable because “exempt employees have more freedom to adapt their schedules to attend to personal needs,” said Robertson.
FFCRA leave vs. FMLA leave
Intermittent leave under FFCRA would be more predictable than under FMLA, which is allowed when it’s necessary for a worker’s own health or a family member’s health condition. Under FFCRA, the reasons would most likely be known ahead of time and tend to be somewhat continuous, as in school or day care closures.