Extending that advice, Carey said courts have been reluctant to require an employer to provide indefinite leave and are even suspicious of sporadic leave. Another area of leave where the FMLA and ADA have created confusion and uncertainty is requests for intermittent leave where employees want to take just part of the workday off as leave or as an ADA accommodation. Under the ADA, intermittent leave is available as a reasonable accommodation as long as the employee is able to perform the essential functions of the job first. If a transfer is necessary to allow this accommodation, Carey said, employers do not have to provide the same wage and benefits. If the leave falls under the FMLA, the employee must show that the leave is medically necessary and provide the employer with a projection of the frequency and likely amount of time required for this intermittent leave.
Employees currently can take leave in increments as short as one hour.
Under the proposed changes, the smallest increment an employee could take leave could be extended to four hours, Carey said. In addition, Carey suggested that employers make sure regular attendance is listed as an essential job function whenever possible to immunize the company from challenges, but added that there needs to be support for such an assumption and that the courts have recognized there are entire classes of jobs where attendance is not an essential function. Inc. All Rights Reserved.