Intermittent FMLA in New York: Eligibility, Pay, and Job Protection

Intermittent FMLA in New York lets an eligible employee break the federal 12-workweek entitlement into separate absences, partial days, or a reduced schedule when a serious health condition makes that necessary. The federal Family and Medical Leave Act supplies the job protection and the 12 weeks; New York’s Paid Family Leave and Disability Benefits Law sit on top of it and provide the wage replacement FMLA itself does not.¹ How those three programs fit together decides whether your leave is both protected and paid.

Who Qualifies

Three federal tests all have to be satisfied before you can use intermittent leave. You need at least 12 months of employment with your current employer, and those months do not have to be consecutive. You need 1,250 hours actually worked in the 12 months immediately before the leave starts, which does not include paid time off or prior FMLA absences. And your employer must have 50 or more employees within a 75-mile radius of your worksite.²

The 50-employee rule is the one that catches New York workers off guard. A small satellite office can still be covered if the parent employer has enough staff at other locations within 75 miles. A truly small business is not covered by federal FMLA at all, though New York Paid Family Leave and state disability benefits have their own separate eligibility rules and reach many workers FMLA does not.

Which Reasons Allow Intermittent Use

Not every FMLA reason can be split up. Intermittent scheduling is a right when it is medically necessary, which covers:

Your own serious health condition, including recurring treatments like chemotherapy, dialysis, or physical therapy, and chronic conditions that flare unpredictably such as migraines, epilepsy, or severe asthma.
A family member’s serious health condition, when you need to take a spouse, child, or parent to appointments or care for them between treatments.
Military qualifying exigency leave for urgent matters tied to a family member’s active-duty call-up.
Military caregiver leave for a covered servicemember with a serious injury or illness, which carries a larger 26-workweek entitlement in a single 12-month period.³

Bonding with a newborn or newly placed adopted or foster child works differently. You can only take bonding leave intermittently if your employer agrees to it. Medical leave, by contrast, is yours to schedule as the condition requires, without needing permission for the intermittent format.⁴

How the Hours Are Counted

Your employer converts the 12-workweek entitlement into hours based on your normal schedule. Forty hours a week gives you 480 protected hours in the year; a 50-hour schedule gives you 600.⁵ Each intermittent absence is subtracted from that bank.

The tracking increment matters when the absences are short. Your employer must use the smallest time unit it uses for any other type of leave, and that increment can never exceed one hour. If sick time is tracked in 15-minute blocks, FMLA is tracked the same way.⁶

Overtime trips people up. Mandatory overtime you cannot work because of your qualifying condition counts against your leave bank. Voluntary overtime you skip does not.⁵

Getting the Leave Approved

Your employer can require a medical certification from your provider before approving intermittent leave. The certification has to give the date the condition started, its expected duration, and enough medical detail to establish why an intermittent schedule is necessary. For intermittent use specifically, the provider needs to estimate how often episodes will occur and how long each one will last.⁷

The Department of Labor publishes optional certification forms (WH-380-E for your own condition, WH-380-F for a family member’s) that most employers accept, though your provider can supply the same information in a letter instead.⁸ Vague language like “patient may need occasional time off” almost guarantees a clarification request, which delays approval. Be specific about frequency and duration.

Approval is not permanent. Employers can generally request recertification once every 30 days, and only in connection with an absence; if the certification states a minimum duration longer than 30 days, the employer must wait until that period expires. For long-term or lifetime conditions, recertification can be requested every six months. An employer can request it sooner if circumstances change significantly, such as absences that suddenly last much longer than the certification predicted.⁹

If your employer doubts the initial certification, it can require a second opinion from a provider of its choice, at its expense. When the second opinion conflicts with the first, a third opinion from a provider you and the employer jointly select is final and binding, and the employer pays for that one too.¹⁰

Notice You Owe and Notice You’re Owed

When you know about the need for leave in advance (scheduled treatments, planned procedures, recurring therapy), you owe your employer at least 30 days’ notice. When the need is unforeseeable, you have to notify your employer the same day you learn of it, or at the latest the next business day.¹¹

For intermittent leave tied to a chronic condition, every individual absence still triggers notice under your employer’s ordinary call-in procedure. If your office requires a call to a specific number before your shift, follow it. Skipping the usual procedure can cost you protection for that specific absence.

Going the other direction, once your employer has enough information to determine whether the leave qualifies, it has five business days to issue a designation notice telling you whether the absence counts as FMLA, how much of your entitlement has been used, and what is expected of you while out.¹² If you don’t receive it, ask in writing. An employer that fails to designate leave properly generally cannot later count it against your FMLA bank retroactively.

Getting Paid: New York PFL and Disability Alongside FMLA

FMLA itself is unpaid. Your employer can require you to use accrued vacation or sick time concurrently, and you can choose to on your own; either way those hours run inside the 12-week entitlement rather than extending it.¹³ Beyond that, wage replacement in New York comes from two separate state programs, each covering different situations.

New York Paid Family Leave

NY Paid Family Leave pays 67% of your average weekly wage, capped at 67% of the statewide average weekly wage, for up to 12 weeks.¹⁴ It covers caring for a family member with a serious health condition, bonding with a new child, and military-deployment needs. Full-time employees qualify after 26 consecutive weeks; part-time employees qualify after 175 days.¹⁵

PFL does not cover your own medical condition. If you need intermittent leave for your own chemotherapy, back surgery, or migraines, PFL will not pay you. And when PFL is taken intermittently, it must be in full-day increments, unlike FMLA, which allows partial-day absences.¹⁶

When your reason for leave qualifies under both FMLA and PFL, your employer can require the two to run concurrently, and it must notify you the leave is being designated under both laws.¹⁷

New York Disability Benefits

For your own non-work-related illness or injury, the state’s Disability Benefits Law provides 50% of your average weekly wage, capped at $170 per week, for up to 26 weeks in any 52-week period. Benefits start on the eighth consecutive day of disability, so there is a one-week waiting period, you have to be under a provider’s care, and you must file within 30 days of becoming disabled.¹⁸

The dollar cap is modest, but the program fills the gap PFL leaves open: paying you something when you are the one who is sick. You cannot collect PFL and disability at the same time, and the combined total cannot exceed 26 weeks in a 52-week period. For intermittent leave tied to your own serious health condition, disability may apply to episodes lasting more than seven consecutive days.

Health Insurance During Leave

Throughout your FMLA leave, your employer must maintain your group health coverage on the same terms as if you were still working, including family coverage and any mid-leave plan changes.¹⁹ You still owe your share of the premium. For intermittent leave this is usually handled through normal payroll deductions since you are still working part of the time.

Job Protection and What To Do If It’s Violated

Reinstatement

When your intermittent leave ends, or between episodes, you have the right to return to the same position you held before or an equivalent one. Equivalent means virtually identical pay, benefits, working conditions, and responsibilities, along with the same shift, same general work location, and same opportunities for bonuses and advancement.²⁰ Any pay increases that took effect during your leave still apply, and if you missed a required certification or training while out, your employer must give you a reasonable chance to catch up.

Temporary Transfers

If your intermittent leave is foreseeable and tied to planned medical treatment, your employer can temporarily transfer you to a different position that better accommodates the schedule. The alternative role does not need to involve the same duties, but it must carry equivalent pay and benefits, and the transfer cannot be punitive.²¹ Once the intermittent leave period ends, you return to your original position or an equivalent one.

Retaliation and Filing a Complaint

Federal law bars your employer from interfering with your FMLA rights or retaliating for exercising them. That covers firing, demoting, disciplining, or cutting your hours because you took or requested leave, and it also reaches subtler tactics like shuffling employees between worksites to drop below the 50-employee threshold or changing job duties to make you ineligible.²²

Intermittent leave draws the most retaliation friction because employers sometimes treat frequent short absences as a performance problem. If negative treatment appears after you start using intermittent FMLA, document the dates of absences, any supervisor comments, changes in assignments or reviews, and written communications.

You have two options if your rights are violated. You can file a confidential complaint with the Department of Labor’s Wage and Hour Division at 1-866-487-9243, and the agency decides whether to investigate.²³ You can also file a private lawsuit. The statute of limitations is two years from the last violation, or three years if the violation was willful, and remedies can include lost wages, lost benefits, and reinstatement.²⁴

1
U.S. Department of Labor. Family and Medical Leave Act
2
U.S. Department of Labor. FMLA Frequently Asked Questions
3
U.S. Department of Labor. Fact Sheet 28M(a) – Military Caregiver Leave for a Current Servicemember
4
U.S. Department of Labor. Fact Sheet 28 – The Family and Medical Leave Act
5
U.S. Department of Labor. Fact Sheet 28I – Counting Leave Use Under the Family and Medical Leave Act
6
eCFR. 29 CFR 825.205 – Increments of FMLA Leave for Intermittent or Reduced Schedule Leave
7
eCFR. 29 CFR 825.306 – Content of Medical Certification
8
U.S. Department of Labor. FMLA Forms
9
eCFR. 29 CFR 825.308 – Recertification
10
U.S. Department of Labor. Fact Sheet 28G – Medical Certification Under the Family and Medical Leave Act
11
eCFR. 29 CFR 825.302 – Employee Notice Requirements for Foreseeable FMLA Leave
12
eCFR. 29 CFR 825.300 – Employer Notification Requirements
13
eCFR. 29 CFR 825.207 – Substitution of Paid Leave
14
New York Department of Financial Services. PFL Rate Decision 2026
15
New York State Paid Family Leave. Eligibility
16
New York State Paid Family Leave. Paid Family Leave for Family Care
17
New York State Paid Family Leave. Paid Family Leave and Other Benefits
18
New York Workers’ Compensation Board. Introduction to the Disability Benefits Law
19
eCFR. 29 CFR 825.209 – Maintenance of Group Health Plan Benefits
20
eCFR. 29 CFR 825.215 – Equivalent Position
21
eCFR. 29 CFR 825.204 – Transfer to an Alternative Position
22
eCFR. 29 CFR 825.220 – Protection for Employees Who Request Leave or Otherwise Assert FMLA Rights
23
U.S. Department of Labor. How to File a Complaint
24
U.S. Department of Labor. Family and Medical Leave Act Advisor