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Do Employers Have to Provide Intermittent Leave Under the ADA or FMLA?


We have written in the past that the Americans With Disabilities Act (ADA) requires that your employer provide leave from work for you, if that leave is a required accommodation under the ADA, and if you have a covered disability or illness under the ADA.

Intermittent Leave Requests

But what about intermittent leave? Often, an employee’s injury, illness, or disability, doesn’t require one continuous leave of absence. It may require two days here, a week there, three weeks a little later, and so on.

Other than the time and consecutive element, there is something else that differentiates these kinds of leave from work or accommodations: foreseeability.

When you get an illness, or you are injured, you likely know about how long you will need off of work, or how long you will need to work from home, or whatever accommodation you need. You can tell your employer, and your employer can plan, for the estimated time period that you will need the requested accommodation.

But intermittent leave is different. Your employer cannot plan, and neither can you. You don’t know when you’ll have a “flare up,” or when you’ll have a good day as opposed to a bad day, that may require leave, or work from home, or whatever other kind of accommodation. You may have doctors’ appointments or medical procedures that you will need periodically because of your illness or disability.

But is that covered under the ADA? Does your employer have to give you this kind of intermittent leave under the ADA?

Law Requires Intermittent Leave Requests be Granted

Both the ADA and the Family Medical Leave Act (FMLA) do require that an employer provide intermittent leave. Under the FMLA, you must still be able to perform your job, when you are at work (this is different from the ADA, where your disability may require accommodation even when you are at work).

The ADA also requires that if your intermittent leave creates such a hardship on the business that it cannot perform its functions, that your employer must see if there is another position for you inside the company that would cause the company less hardship—that is, a position where intermittent leave wouldn’t be as disruptive to business operations as your current position.

When Employers Can Deny Intermittent Leave

If intermittent leave creates an undue hardship on the employer, and there are no other positions for you, your employer might argue that it does not have to provide you the intermittent leave.

However, that is a high burden, and in reality, most companies claim undue hardship, and just deny requests for intermittent leave, without actually verifying that it would, in fact, be a hardship on the company thus making such a decision challengable.

And, of course, you as an employee should be fair and reasonable as well. Employers are on the lookout for employees that abuse intermittent leave. It should only be taken when necessary.

Contact the San Jose employment lawyers at the Costanzo Law Firm today with questions about your rights as an employee in California if you are injured or get ill, and need an accommodation at work.


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