When Should Employers Deny Intermittent Leave Under FFCRA?

Allen Smith, J.D. By Allen Smith, J.D. May 11, 2020
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​Under the Families First Coronavirus Response Act (FFCRA), employers may deny intermittent emergency family and medical leave for workers facing school or child care closures. Denying such leave may frustrate employees, but business needs may outweigh employee relations concerns.

These business needs may include covering shifts, fully staffing production lines, completing lengthy tasks and having staff available to respond to customers, noted Sarah Platt, an attorney with Ogletree Deakins in Milwaukee. Intermittent leave under the FFCRA may occur in increments of less than a day (such as a half-day off) or as a day off here and there (such as taking Tuesdays and Thursdays off) if the employer and the employee agree to one of these schedules.

In evaluating requests for intermittent emergency and family leave under the FFCRA, "employers need to carefully evaluate and balance many important competing interests, including productivity, employee engagement, and the risk of litigation or organizing activity that may result from an overly restrictive approach to intermittent leave," said Marjory Robertson, assistant vice president and senior counsel at Sun Life Financial in Wellesley Hills, Mass.

Employers should also take into consideration the fact that the U.S. Department of Labor is encouraging employer flexibility and recognizes that many employees have children at home who need care, she added. When an employee requests intermittent leave in an increment of less than a day, "if an employer denies the intermittent schedule, the employee may have the right to take the leave for the entire day and the employer would lose productivity of an entire workday rather than just a portion," she said.

That said, intermittent leave is not a substitute for paid sick leave when employees work onsite. Paid sick leave is meant to prevent the spread of coronavirus in the workplace, she explained.

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'Significant Leeway'

The FFCRA gives employers "significant leeway" to either approve or deny an intermittent schedule for an employee requesting emergency family and medical leave, Robertson said.

If an employee does not have a client-facing role, an employer may agree to a staggered schedule throughout the workday as the DOL suggests in its guidance, she added. "However, employers have the right to reject a proposed intermittent schedule if it would not meet the employer's business needs."

Employers may be willing to agree to a predictable intermittent schedule but deny unpredictable intermittent absences, she said. "Employers may also agree to a staggered or even unpredictable schedule for a top performer but deny it for someone who is performing less strongly or is less reliable."

Although consistency helps demonstrate fairness, "We have to recognize that within the same organization, some roles and situations may lend themselves better to an intermittent leave request than others," said Chelsea Mesa, an attorney with Seyfarth in Los Angeles.

Requests can't be granted or denied for discriminatory reasons. "Employers should understand, and be prepared to explain, if and when necessary, the business reasons why the decisions were made," she added.

Exempt vs. Nonexempt

One reason for denying intermittent leave under the FFCRA might be that an employee is nonexempt. "Exempt employees have more freedom legally as well as practically to adapt their schedules to attend to personal needs during a workday," Robertson said. Nonexempt workers often have daily production requirements that are more negatively impacted by periods of intermittent leave, she added.

But employers should be flexible when possible and treat similarly situated employees consistently, said Abigail O'Connell, an attorney with Sun Life Financial in Wellesley Hills, Mass.

Good Communication

Employees may be upset if their employer denies intermittent leave even though it has the legal right to do so under the FFCRA and may have a good reason for the denial. "It is therefore important for employers to communicate why the company is unable to provide the leave," said Janie Schulman, an attorney with Morrison & Foerster in Los Angeles.

One good reason for denying intermittent leave under the FFCRA is if the employer is struggling financially due to the pandemic and does not have the resources to cover for employees who take periodic absences, she noted. This would be especially true if an employer has had to lay off workers and doesn't have the staff it had before the pandemic.

FFCRA vs. FMLA

Platt said intermittent emergency family and medical leave under the FFCRA would be more predictable than intermittent leave under the Family and Medical Leave Act (FMLA). Under the FMLA, employers must provide intermittent leave when it is medically necessary in connection with an employee's own or a family member's serious health condition or a service member's serious illness or injury. Employees may use intermittent FMLA leave in connection with the birth or placement of a child only if the employer agrees.

Employees can use intermittent leave for flare-ups of medical conditions, which means the employee and the employer do not know in advance when the employee will miss work, Platt said. Under the FFCRA, however, the reasons for leave are known ahead of time and tend to be continuous, such as school closures.

Robertson said, "A key negative impact of intermittent leave is the damage it can cause to morale in the workplace because [co-workers] sometimes believe that the employee taking intermittent leave is getting away with something and not carrying [his or her] weight."

In a virtual workplace, however, intermittent leave may be less visible to other employees and cause less resentment. "This is a time of national—indeed, global—crisis, and many employees understand and can empathize with the challenges that employees are facing as they struggle to manage both their personal and workplace demands," Robertson noted.

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