LEGAL DISCLAIMER: This article provides general, informational content for educational purposes only. It is not a substitute for professional legal advice from a qualified attorney. Always consult with a lawyer for guidance on your specific legal situation.
Imagine your car has a tricky engine problem. It doesn't need to stay in the shop for a month straight. Instead, it runs fine most days, but twice a month, it needs a few hours with the mechanic for a tune-up. You wouldn't quit your job for these short, unpredictable appointments, right? You’d arrange to miss a few hours of work, get the car fixed, and come back. Intermittent leave is the legal equivalent of this for your health or a family member's health. It’s a powerful protection under the federal family_and_medical_leave_act (FMLA) that allows eligible employees to take leave in separate, small blocks of time—from a single hour to a few days at a time—for a single qualifying reason, rather than taking all their leave at once. It’s designed for chronic health conditions, ongoing medical treatments, or unpredictable flare-ups, ensuring you don't have to choose between your health and your job.
The concept of intermittent leave is deeply rooted in the passage of the landmark Family and Medical Leave Act (FMLA) in 1993. Before the FMLA, American workers faced a cruel choice: care for a newborn child, a gravely ill spouse, or their own serious health condition, and risk losing their job. There was no federal law guaranteeing job-protected leave. The workforce had changed dramatically since the mid-20th century. The rise of dual-income households and single-parent families meant that the old model of one parent staying home was no longer the norm. Advocacy groups spent nearly a decade fighting for a federal law that recognized this new reality. They argued that job security during a family or medical crisis was a matter of economic stability for families and a basic standard of human decency. The opposition was fierce, with some business groups arguing that it would create unbearable costs and administrative burdens. The final bill, signed into law by President Bill Clinton, was a compromise. It provided for 12 weeks of unpaid, job-protected leave. Crucially, its drafters understood that medical needs aren't always linear. A serious health condition doesn't always require a single, 12-week block of time off. Chronic conditions like severe asthma, diabetes, or the need for ongoing cancer treatments required a more flexible approach. This understanding gave birth to the provisions for “intermittent leave” and a “reduced leave schedule,” allowing the FMLA to apply to the real-world complexities of managing long-term health issues. It was a revolutionary acknowledgment that workers needed flexibility, not just a block of time, to balance their health, family, and work responsibilities.
The primary law governing intermittent leave is the federal family_and_medical_leave_act, which is codified in the U.S. Code at 29_u.s.c._chapter_28. The specific regulations, which provide the detailed rules for how the law is applied, are issued and enforced by the U.S. department_of_labor (DOL). The law itself doesn't use the term “intermittent leave” in its main definitional section but authorizes it clearly. Section 2612(b)(1) states:
“Leave… may be taken intermittently or on a reduced leave schedule when medically necessary.”
The DOL's regulations provide the plain-language explanation. 29 C.F.R. § 825.202 defines it:
This means that instead of taking a solid 12-week block, an employee can, for example, miss two afternoons a week for physical therapy (a reduced leave schedule) or call out sick for a full day once or twice a month when a chronic condition like lupus flares up (intermittent leave). The key phrase from the law is “medically necessary,” which is the standard that must be met and certified by a healthcare provider.
While the FMLA provides a federal baseline of protection, many states have enacted their own family and medical leave laws. These state laws can offer greater protections, such as covering smaller employers, providing paid leave, or having more generous eligibility requirements. If you live in a state with its own law, you are generally entitled to the most beneficial provisions of either law. Here’s a comparison of the federal FMLA with laws in a few representative states:
| Provision | Federal (FMLA) | California (CFRA/PFL) | New York (PFL) | Texas |
|---|---|---|---|---|
| Covered Employers | Private employers with 50+ employees; all public agencies | Private employers with 5+ employees | Nearly all private employers | No state law; only FMLA applies |
| Employee Eligibility | 12 months & 1,250 hours worked in the past year | 12 months & 1,250 hours worked in the past year (for CFRA job protection) | Varies by schedule, but generally 26 weeks of employment | 12 months & 1,250 hours worked in the past year |
| Leave Duration | Up to 12 weeks per 12-month period | Up to 12 weeks per 12-month period | Up to 12 weeks per 52-week period | Up to 12 weeks per 12-month period |
| Paid or Unpaid? | Unpaid (employer may require use of paid sick/vacation time) | Paid benefits available through State Disability Insurance (PFL program). Job protection (CFRA) is separate and unpaid. | Paid benefits funded through employee payroll deductions, providing a percentage of salary. | Unpaid |
| Key Takeaway | Provides the national minimum for job protection. | More inclusive (covers smaller businesses) and offers paid benefits. | Focuses on providing paid leave to nearly every private-sector employee. | Workers rely solely on federal FMLA protections. |
What this means for you: If you work for a company with 15 employees in California, you aren't covered by the federal FMLA, but you are covered by California's CFRA for job-protected leave. If you work in New York, your leave will be paid, which is a significant benefit not offered by the federal FMLA.
To successfully use intermittent leave, you must understand its four core building blocks: employee eligibility, a qualifying reason, the definition of a “serious health condition,” and the medical certification process.
Not every employee is entitled to FMLA leave. You must meet all three of the following criteria:
Example: Sarah works for a large corporation. She has been with the company for three years, working 40 hours a week. Her office in Denver has 100 employees. Sarah meets all three eligibility requirements.
Intermittent leave can only be taken for a “medically necessary” reason. The FMLA outlines several qualifying reasons, but for intermittent leave, the most common is:
Example: David's mother is undergoing chemotherapy. She needs him to drive her to appointments every other Tuesday and assist her at home on days when the side effects are severe. This is a valid qualifying reason for intermittent leave to care for a parent.
This is one of the most misunderstood parts of the FMLA. A “serious health condition” is not just a common cold or a minor stomach bug. The DOL has a specific, multi-part definition. It includes:
You can't just tell your boss you have a chronic condition and start taking intermittent leave. You must provide proof through a formal medical_certification. Your employer must give you at least 15 calendar days to obtain this. Typically, this involves your doctor completing a specific form, like the DOL's form_wh-380-e (for your own condition) or form_wh-380-f (for a family member's). This form does not disclose your specific diagnosis, but it must provide key information for the employer, such as:
Navigating the FMLA process can feel intimidating, but it's manageable if you take it one step at a time.
Before you do anything else, check if you meet the three requirements:
If you're unsure, ask your HR department for this information. They are required to provide it.
Schedule an appointment specifically to discuss your need for intermittent leave. Be prepared. Explain your job duties and how your condition impacts your ability to perform them. Say clearly, “I need to apply for intermittent FMLA leave, and I will need you to fill out a medical certification form.” Your doctor needs to be able to estimate the frequency and duration of your future absences.
You must provide notice of your need for leave.
When you give notice, you don't have to say the words “FMLA” or “intermittent leave,” but you must provide enough information to suggest your absence may be FMLA-qualifying (e.g., “I need to be out tomorrow because of a flare-up of my serious medical condition,” not just “I won't be in”).
Your employer must give you a packet of FMLA paperwork, including a notice of your rights and the certification form.
Once your leave is approved, clarify the process with HR.
Your employer is prohibited from engaging in retaliation. This means they cannot use your approved intermittent leave as a negative factor in any employment action, such as:
If you believe you are being penalized for using FMLA leave, you should contact an employment_law attorney or the department_of_labor immediately.
The Situation: Maria suffers from debilitating migraines that are unpredictable. When one hits, she experiences intense pain, light sensitivity, and nausea, making it impossible to look at a computer screen or speak with clients. Her doctor determines she may need to miss 1-2 full days of work per month. The FMLA Process: Maria's doctor completes a form_wh-380-e, certifying that her migraines are a chronic serious_health_condition and that the estimated frequency of absence is medically necessary. Her FMLA is approved. When a migraine starts, she follows her company's call-out procedure and specifies that the absence is for FMLA leave. The Pitfall: Maria's manager starts making passive-aggressive comments about her unreliability. This could be considered FMLA interference or retaliation, and Maria should document these comments and report them to HR.
The Situation: Ben's 10-year-old son is undergoing chemotherapy for leukemia. The appointments are every Wednesday afternoon, and his son is sick for a full day after each treatment. The FMLA Process: This qualifies as both a reduced leave schedule (every Wednesday afternoon) and intermittent leave (the day after). Ben's employer approves his FMLA based on his son's oncologist's certification. His 12-week FMLA allotment is depleted in hours, not full weeks. The Pitfall: The employer tries to deny the leave, claiming it's too disruptive to the schedule. This is illegal. As long as the leave is medically necessary, the employer must find a way to accommodate it, though they can explore temporarily transferring the employee to an alternative position with equivalent pay and benefits that better accommodates the leave schedule.
The Situation: Tom has approved intermittent FMLA for severe back pain. He uses it on a Monday following a weekend where he posted photos on social media of himself at a family barbecue. His supervisor sees the photos and accuses him of “FMLA abuse,” threatening disciplinary action. The Process: An employer can investigate suspected abuse. However, they cannot rely solely on social media posts. Tom's condition might prevent him from performing his physically demanding job, but not from sitting at a barbecue. The Pitfall: If the employer disciplines Tom without a thorough, fair investigation (like talking to him or seeking a second medical opinion, which is highly regulated), it could be considered retaliation. Tom's best defense is his consistent medical documentation and clear communication.
The Situation: Anya has been diagnosed with Major Depressive Disorder and Generalized Anxiety Disorder. Most days, she can manage her symptoms, but during severe episodes, she experiences panic attacks and is unable to leave her home. The FMLA Process: Mental health conditions absolutely qualify as serious health conditions under the FMLA if they meet the criteria (e.g., a period of incapacity requiring continuing treatment). Anya's therapist or psychiatrist can complete the FMLA certification, stating she may need 2-4 days of leave per month during acute episodes. The Pitfall: Stigma. A manager might be less understanding of a mental health-related absence than a physical one. It is illegal for an employer to treat mental health-related FMLA leave differently. Anya's medical information is confidential and should not be shared beyond those in HR with a need to know.
The FMLA is not a static law. It is constantly being debated and re-interpreted.