Not every medical condition or family responsibility requires weeks away from work. Sometimes you need a few hours for a doctor's appointment, a day off during a medical flare-up, or a temporary adjustment to your schedule while caring for a loved one.

Many employees assume they must choose between working full-time or taking an extended leave of absence. Fortunately, federal and New Jersey law recognize that reality is often more complicated.

In many situations, employees have the right to take intermittent leave, time off taken in smaller increments, without losing their jobs. Unfortunately, intermittent leave is also one of the most misunderstood workplace rights, leading to unlawful denials, discipline, and even termination.

Understanding how intermittent leave works can help you protect your rights and recognize when an employer may be violating the law.

Why Intermittent Leave Is So Often Misunderstood 

Intermittent leave creates unique challenges for both employers and employees.

From an employer's perspective, unpredictable absences can make scheduling difficult and disrupt business operations. As a result, some employers become overly restrictive or attempt to discourage employees from using leave altogether.

At the same time, many employees are unaware that intermittent leave may be legally protected. Workers often assume that occasional absences will count against attendance policies or put their jobs at risk.

Employers may also worry about abuse of leave policies. While employers have the right to request appropriate documentation and monitor compliance, concerns about misuse do not justify denying valid leave requests.

Miscommunication frequently compounds these issues. Employees may not know who to go to, what questions to ask, what forms to completely, or what to ask for, or what information they need to provide. While employers may also misunderstand their legal obligations in response. The result can be significant legal exposure for companies and serious consequences for workers.

What Is Intermittent Leave? 

Intermittent leave is leave taken in separate blocks of time rather than one continuous period away from work.

Instead of taking several weeks or months off, an employee may need:

• A few hours for recurring medical appointments;
• One or two days per month due to a chronic condition;
• Periodic absences to care for a family member; or
• A temporarily reduced work schedule.

Intermittent leave differs from continuous leave because the employee remains actively employed and working during the leave period.

Common examples include, but are not limited to:

Ongoing Medical Treatment 

Employees undergoing treatments such as chemotherapy, physical therapy, dialysis, or other recurring medical care may require periodic absences.

Chronic Health Conditions 

Conditions such as migraines, epilepsy, Crohn's disease, severe asthma, or certain mental health disorders may involve unpredictable flare-ups that occasionally prevent an employee from working.

Caregiving Responsibilities 

Employees caring for a spouse, child, parent, or other qualifying family member may need intermittent time away from work to provide care, attend medical appointments, or address health-related emergencies.

Laws That Protect Intermittent Leave 

Several laws may provide protection for intermittent leave, depending on the circumstances.

The Family and Medical Leave Act (FMLA)

The federal Family and Medical Leave Act (FMLA) allows eligible employees to take up to 12 weeks of unpaid, job-protected leave during a 12-month period for qualifying reasons. Importantly, the FMLA permits leave to be taken intermittently when medically necessary.

Qualifying reasons may include:

• The employee's own serious health condition;
• Caring for a spouse, child, or parent with a serious health condition; or
• Certain military family circumstances.

When medically necessary, leave may be taken in small increments rather than as a continuous block of time.

 Who Qualifies for Intermittent Leave?

• Employer Size Requirements: Both federal and state leave laws apply only to employers that meet certain size thresholds. Whether your employer is covered depends on factors such as the number of employees and where those employees are located.
• Employee Tenure and Hours Worked: To qualify for FMLA protections, employees generally must have:

• Worked for the employer for at least 12 months
• Worked at least 1,250 hours during the previous 12 months

**Different standards may apply under New Jersey law.

Medical Certification 

Employers may require medical certification supporting the need for intermittent leave.

The certification typically must explain:

• The qualifying medical condition;
• Why intermittent leave is necessary; and
• The expected frequency and duration of absences.

Providing accurate and timely documentation is often critical to preserving leave rights.

How Intermittent Leave Actually Works

Many employees are surprised to learn that intermittent leave is governed by specific rules.

Minimum Increment Rules

Employers may generally track intermittent leave using the smallest increment of time they use for other forms of leave, provided it complies with applicable law. For example, leave may be counted in hourly increments rather than full days.

Scheduling Expectations

When leave is foreseeable, employees are typically expected to provide advance notice and make reasonable efforts to schedule appointments in a way that minimizes workplace disruption. However, emergencies and unexpected medical episodes may not allow advance planning.

Employer Coordination Rights

Employers may communicate with employees regarding scheduling and documentation requirements. In some situations, temporary transfers or schedule adjustments may be permissible if they better accommodate intermittent leave needs.

Certification and Recertification

Employers may request certification and, under certain circumstances, recertification to verify the continuing need for leave. Employees who fail to comply with legitimate documentation requests could jeopardize their protections.

Where Employers Get It Wrong

Intermittent leave rights are frequently violated, often because employers misunderstand the law or prioritize attendance policies over legal compliance.

Common mistakes include:

Denying Valid Intermittent Leave Requests

Some employers incorrectly assume leave must be taken in one continuous block or refuse to recognize qualifying medical needs.

Penalizing Employees for Protected Absences

Protected leave cannot simply be treated as ordinary absenteeism.

Counting Protected Leave Against Attendance Policies

Attendance point systems and disciplinary policies must generally account for legally protected leave.

Discouraging Employees from Using Leave

Employers may not interfere with an employee's ability to exercise leave rights by pressuring workers not to take leave, threatening consequences, or creating unnecessary obstacles.

What to Do If Your Rights Are Violated

If you believe your employer is improperly denying or penalizing intermittent leave, taking proactive steps can strengthen your position.

Step 1: Keep Detailed Records

Save emails, text messages, attendance records, schedules, doctor's notes, and any communications related to your leave request. Documentation often becomes critical evidence in employment disputes.

Step 2: Follow Certification Requirements

Provide requested medical certifications promptly and maintain copies of everything submitted.

Step 3: Watch for Retaliation

Pay attention to changes in treatment after requesting or using leave. Timing often becomes an important factor in proving retaliation.

Step 4: Speak with an Attorney

Employment leave laws can be complex, particularly when federal and state protections overlap. An attorney can help determine whether your employer's actions violate the law and what options may be available.

Protect Your Rights When Taking Intermittent Leave

Intermittent leave is one of the most misunderstood, and frequently violated, employee rights in the workplace. The difference between a lawful denial and an illegal one often comes down to the details.

If your employer is pushing back on your leave request, counting protected absences against you, or penalizing you for using intermittent leave, you may have legal options.

The employment law attorneys at Mark | Lavigne can evaluate your situation, explain your rights, and help you determine the best path forward. Contact our team today for a confidential consultation.