Intermittent Leave Under CFRA and FMLA — Your Rights and What Employers Cannot Do

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Updated April 2026 to reflect current CFRA intermittent leave standards under Government Code § 12945.2, FMLA regulations at 29 C.F.R. Part 825, California Civil Rights Department enforcement guidance, and 2025–2026 appellate developments on no-fault attendance policy violations.

The most misunderstood aspect of California medical leave law is not the twelve-week entitlement. It is what happens when the twelve weeks are not taken all at once.

Most employees who know they have CFRA or FMLA rights imagine leave as a block — a continuous period of absence for surgery, childbirth, or a serious illness. What they do not know is that the law also protects intermittent leave: the right to take leave in separate blocks of time, or on a reduced schedule, when a serious health condition requires it.

An employee managing cancer treatment may need every Thursday off for chemotherapy. An employee with a severe anxiety disorder may need occasional unscheduled absences during acute episodes. An employee with Crohn's disease may need a reduced daily schedule during flare periods.

All of these leave patterns are protected under CFRA and FMLA. And all of them are sources of violations — because intermittent leave is the form of medical leave that employers most frequently deny, miscount, discipline for, and terminate over.

What Intermittent Leave Is — The Legal Framework

Both CFRA and FMLA permit employees with qualifying serious health conditions to take leave intermittently or on a reduced schedule when medically necessary.

29 C.F.R. § 825.202 defines intermittent leave as leave taken in separate blocks of time due to a single qualifying reason, and reduced schedule leave as leave that reduces the employee's usual number of working hours per workweek or per workday.

Government Code § 12945.2 mirrors this framework under California law.

The intermittent leave right extends to both foreseeable and unforeseeable medical needs:

Leave Type	Foreseeable?	Notice Requirement	Examples
Planned medical treatment	✅ Yes	30 days advance notice when practicable	Chemotherapy appointments, dialysis, scheduled surgery follow-ups
Chronic condition flares	❌ No — unforeseeable	As soon as practicable — generally same day	Migraine episodes, Crohn's flares, anxiety attacks, PTSD episodes
Reduced schedule during recovery	✅ Yes	30 days when practicable	Post-surgical reduced hours, radiation treatment weeks
Pregnancy-related conditions	Both	Depends on condition	Morning sickness, prenatal appointments, complications
Ongoing psychiatric treatment	Both	Depends on appointment scheduling	Therapy sessions, medication management appointments

The notice requirement for intermittent leave is calibrated to the foreseeability of the need. When the leave is foreseeable — planned medical treatment, scheduled appointments — the employee must provide 30 days' advance notice when practicable.

When the leave is unforeseeable — an acute flare of a chronic condition — the employee must provide notice as soon as practicable under the circumstances. Calling in sick the morning of a flare episode satisfies the notice requirement for unforeseeable intermittent leave.

The Employer's Duty to Designate — The Most Violated Rule

The most frequently violated rule in intermittent leave is one that most employees never know exists: the employer's obligation to designate qualifying absences as CFRA or FMLA leave, even when the employee does not specifically request CFRA or FMLA designation.

Under 29 C.F.R. § 825.300, when the employer has enough information to determine that an absence may qualify for FMLA leave — from the employee's verbal description of their condition, from a prior approved FMLA certification, or from observable symptoms — the employer must designate the absence as FMLA leave. The employer cannot wait for the employee to specifically request FMLA designation before applying it.

The practical consequence of this rule is significant. An employee who calls in sick and says, "I'm having a flare-up of my Crohn's disease," has provided sufficient information to trigger the employer's designation duty — even if the employee never mentions CFRA or FMLA.

An employee with a previously approved intermittent leave certification who calls in citing the same condition has definitively triggered the designation obligation. The employer's failure to designate these absences as protected leave — and subsequent discipline for those absences — is itself the interference violation.

The designation notice requirement: Once the employer designates an absence as FMLA leave, it must notify the employee of the designation within five business days. An employer that designates retroactively — or that disciplines an employee before issuing a designation notice — has created additional compliance exposure.

No-Fault Attendance Policies — The Most Common Source of Violations

No-fault attendance policies are workplace rules that discipline or terminate employees who accumulate a specified number of absences, regardless of the reason for the absences. They are common in manufacturing, retail, healthcare, and logistics — and they are one of the most frequent sources of intermittent leave violations in California.

Under both CFRA and FMLA, absences that qualify as intermittent leave cannot be counted against an employee in an attendance analysis. An employer whose attendance policy disciplines employees for accumulating six absences in a rolling 12-month period must exclude all CFRA or FMLA-qualifying absences from that count.

An employee who would have accumulated only three countable absences — with the others qualifying for intermittent leave — cannot be disciplined under the policy.

The violation occurs when employers count qualifying absences, fail to track which absences are CFRA-protected, or fail to inquire whether absences may qualify before applying attendance policy consequences.

How employers get this wrong:

An HR system that automatically generates discipline letters when an employee reaches the attendance threshold — without any human review of whether the absences include CFRA-qualifying absences — is a systematic violation mechanism.

The automated system cannot distinguish between an unexcused absence and a CFRA-qualifying flare-related absence. If the employer has not built a CFRA review step into the attendance discipline process, it has built a reliable CFRA violation machine.

An employer who asks employees to provide a reason for absences after the fact — but disciplines them before receiving any medical documentation — has deprived the employee of the opportunity to establish the CFRA-qualifying basis for the absence before suffering the adverse consequence.

The Certification Process — Rights and Obligations

Intermittent leave certification is the medical documentation process through which the employee establishes the qualifying basis for leave and provides the employer with information about the expected frequency and duration of absences.

The employer's right to request certification: The employer may require medical certification supporting an intermittent leave request. The certification must be completed by the employee's healthcare provider and must include: the nature of the serious health condition; the medical necessity of the intermittent leave; the expected duration of the condition; and the anticipated frequency and duration of leave episodes.

The employee's timeline for providing certification: Once the employer requests certification, the employee has 15 calendar days to provide it. The employer cannot deny leave during this period solely because certification has not yet been provided — the employee is entitled to the leave while certification is pending, provided they have given sufficient notice of the need for leave.

Recertification: The employer may request recertification every 30 days when leave has been taken, when the employee requests an extension, when the duration of the condition is indeterminate, or when circumstances change significantly. The employer cannot require recertification more frequently than every 30 days, absent a qualifying change in circumstances.

The employer cannot require second opinions for intermittent leave in California: While FMLA permits employers to request second and third medical opinions in certain circumstances, California's CFRA provides stronger employee protections — the employer's ability to dispute a healthcare provider's certification is more constrained under state law.

What Constitutes a Violation — The Full Taxonomy

Intermittent leave violations take several distinct forms, each of which creates independent liability:

Counting qualifying absences in attendance tracking. The foundational violation — applying attendance policy consequences to absences that qualify as intermittent leave.

Failing to inquire about the medical basis for absences. When an employer has reason to believe an absence may qualify for CFRA or FMLA — from the employee's stated reason, their known medical condition, or a prior approved certification — the employer must inquire rather than automatically counting the absence.

Denying intermittent leave requests without proper analysis. Telling an employee that intermittent leave is not available for their position, that the company does not accommodate intermittent absences, or that the employee must take all leave at once is a denial that constitutes interference.

Requiring employees to find their own coverage for intermittent absences. An employer cannot condition intermittent leave on the employee's ability to arrange their own replacement. The staffing burden of intermittent leave falls on the employer, not the employee.

Disciplining employees for the pattern of intermittent absences. Discipline based on the frequency of CFRA-qualifying absences — rather than on any underlying performance or conduct issue — is retaliation. An employer who notes that an employee has taken "too many" absences and initiates discipline based on that frequency has retaliated against the protected leave.

Discouraging leave through negative performance reviews. Including a negative comment in a performance review about the employee's attendance — without excluding protected intermittent leave absences from the analysis — is interference that chills the employee's exercise of leave rights.

Transferring or reassigning employees because of intermittent leave. Reassigning an employee to a different position, shift, or location because their intermittent leave pattern is disruptive — without following the limited statutory provisions for transfers in reduced-schedule leave situations — constitutes interference.

Real Cases — Intermittent Leave Violations in California

Manufacturing, Fresno. An assembly line worker with a documented history of Crohn's disease had an approved intermittent FMLA certification that anticipated 2–4 absences per month during flare periods. The employer's no-fault attendance policy generated automatic discipline letters upon reaching six absences in a rolling 12-month period. The attendance tracking system did not flag FMLA-designated absences for exclusion.

When the worker received a termination notice for accumulating eight absences — six of which were FMLA-designated — he had a clear interference claim. The employer's automated system had counted six protected absences toward the termination threshold.

The termination was the culmination of the interference, and the retaliation claim arose from the adverse action taken in response to his leave use. Our wrongful termination case qualifier evaluates whether your termination was due to protected intermittent leave absences.

Retail, San Diego. A retail manager with a documented anxiety disorder had an approved intermittent CFRA certification for acute episodes. When she called in on six occasions, citing her anxiety condition, her supervisor verbally approved each absence but did not formally designate them as CFRA leave. At her annual performance review, her supervisor included a comment about her "reliability issues" and her "pattern of last-minute absences."

The performance review was used to deny her a promotion the following quarter. The interference claim was established by the employer's failure to designate the qualifying absences — which allowed the undesignated absences to be used in performance evaluation — and the retaliation claim was established by the promotion denial following the leave use. The FEHA Claim Checker evaluates how performance review language referencing leave patterns affects FEHA and CFRA claims.

Healthcare, Sacramento. A hospital administrator with multiple sclerosis took intermittent FMLA leave for flare-related cognitive symptoms that made it unsafe to work. On two occasions, her supervisor called her during the leave periods to ask whether she could work remotely and to inquire when she would return.

After her third intermittent absence in a month, she was told that her department "couldn't keep operating this way" and was offered a transfer to a non-supervisory position at reduced pay.

The pressure to work during leave and the transfer offer — which she rejected — constituted interference with her intermittent leave rights. The supervisor's statement about the department's ability to function was the kind of interference-through-discouragement that triggers CFRA liability even without a formal denial of leave.

What to Do If Your Intermittent Leave Is Being Violated

Get the certification in place first. An approved intermittent leave certification is the most important protective document in an intermittent leave situation. Without it, the employer can dispute the qualifying basis for each absence. With it, each absence that falls within the certified pattern is presumptively protected — and any adverse consequence applied to those absences is presumptively interference.

Track every absence and its designation. Keep a personal record of every absence you attribute to your medical condition, the notice you provided, and whether the employer issued a CFRA or FMLA designation notice.

If you do not receive a designation notice within five business days of an absence, request one in writing. The employer's failure to designate — and the absence of a designation notice — is evidence of the interference.

Push back on attendance discipline in writing. If you receive a verbal or written discipline for absences that include CFRA-qualifying absences, respond in writing — identifying the specific absences that qualify for CFRA protection and requesting that those absences be excluded from the attendance count and the discipline rescinded. The employer's response to that request — or its failure to respond — is evidence of its intent.

Request your personnel file under California Labor Code § 1198.5 to confirm what attendance records and designation notices the employer has in its files. File with the California Civil Rights Department within three years of the most recent violation.

For the full medical leave violations framework — including the interference vs. retaliation distinction, the serious health condition requirement, and available damages — see our California medical leave violations guide.

Frequently Asked Questions

Do I have to use the words "CFRA" or "FMLA" to request intermittent leave?

No. You must provide enough information for the employer to understand that the absence may be due to a qualifying medical condition — but you are not required to invoke CFRA or FMLA by name. Telling your supervisor that you need to miss work because of a flare-up of your chronic condition is sufficient notice. Once the employer has that information, the designation obligation shifts to the employer.

Can my employer deny intermittent leave because it is disruptive to operations?

No. Operational disruption is not a basis for denying qualifying intermittent leave under CFRA or FMLA. The statutes recognize that intermittent leave creates scheduling challenges — but the employee's statutory right to take leave when medically necessary is not subordinate to the employer's operational convenience. The employer must accommodate the leave and manage the staffing consequences.

Can my employer count my CFRA-approved absences in my performance review?

No. Performance reviews that include negative commentary on attendance patterns that incorporate CFRA-qualifying absences constitute interference. The employer cannot use protected intermittent leave absences — either directly or by characterizing the employee as "unreliable" based on those absences — in any employment decision that adversely affects the employee.

What if my employer says my condition does not qualify for intermittent leave?

The qualifying condition analysis is governed by the definition of serious health condition under the CFRA and FMLA. If your employer disputes that your condition qualifies, you have the right to provide medical certification from your healthcare provider establishing the qualifying basis. If the employer continues to deny leave despite certification, the denial constitutes interference. An employment attorney can evaluate whether your condition qualifies and advise on how to respond to the employer's position.

How much notice do I have to give for unforeseeable intermittent absences?

For unforeseeable intermittent absences — flare episodes, acute symptoms — you must provide notice as soon as practicable under the circumstances. In most cases, this means calling in before or at the start of your shift. If you are physically unable to call in personally, having a family member notify the employer satisfies the requirement. Following the employer's standard call-in procedure is generally sufficient notice for unforeseeable intermittent leave.

Can my employer ask me to schedule my intermittent leave at specific times?

For foreseeable intermittent leave — planned medical appointments or scheduled treatments — the employer may request that the employee schedule the leave to minimize disruption to operations, provided the scheduling change does not conflict with the employee's medical needs. The employer cannot unilaterally reschedule necessary medical treatment. For unforeseeable intermittent leave, no scheduling requirement applies — the employee takes leave when the medical need arises.

Connect With a Vetted California Medical Leave Attorney

Intermittent leave violations are among the most systematic in California employment law — no-fault attendance systems, performance review practices, and verbal discouragement all produce recurring liability that employers rarely recognize until litigation begins. Early legal consultation ensures your leave is properly documented and protected before the violation becomes a termination.

DISCLOSURE

This article is intended for general informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by reading this content. 1000Attorneys.com is a State Bar of California Certified Lawyer Referral and Information Service (LRS #0128), not a law firm.