Is this intermittent FMLA?

LSI_HR

We have an employee who is FT Exempt and is currently utilizing
FMLA. She is attending appointments related to her health conditions
several times per week for 2-4 hours at a time. She sometimes takes PTO
for these appointments, sometimes not. She often states she is "flexing" her
time. We have instructed her to report all the times she is utilizing
FMLA so those times can be logged towards her leave allotment.

She
is questioning if time that she "flexes" is able to be counted toward
her FMLA. She doesn't have a completely standard work schedule because
of the type of work she does--meeting with clients-- and she can do most
of her work from home when it comes to the paperwork. I would guess
that most days she would probably work her 8 hours between 8am-6:30p,
she just isn't expected to report at 8 and leave at 5.

So if
she isn't using PTO but tells her supervisor, I will be away from 11-1
due to a medical appt related to my serious health condition, but I will
flex my time... is it FMLA or not?

Thanks for you input, let me know if I should clarify further.

HRforME

825.205: 

"(b) Calculation of leave . (1) When an employee takes leave on an intermittent or reduced leave schedule, only the amount of leave actually taken may be counted toward the employee's leave entitlement. The actual workweek is the basis of leave entitlement. Therefore, if an employee who would otherwise work 40 hours a week takes off 8 hours, the employee would use 1?5 of a week of FMLA leave. Similarly, if a full-time employee who would otherwise work 8-hour days works 4-hour days under a reduced leave schedule, the employee would use 1?2 week of FMLA leave. Where an employee works a part-time schedule or variable hours, the amount of FMLA leave that an employee uses is determined on a pro rata or proportional basis. For example, if an employee who would otherwise work 30 hours per week, but works only 20 hours a week under a reduced leave schedule, the employee's ten hours of leave would constitute one-third ( 1?3 ) of a week of FMLA leave for each week the employee works the reduced leave schedule. An employer may convert these fractions to their hourly equivalent so long as the conversion equitably reflects the employee's total normally scheduled hours. See also , §§ 825.601 and 825.602, special rules for schools.

(2) If an employer has made a permanent or long-term change in the employee's schedule (for reasons other than FMLA, and prior to the notice of need for FMLA leave), the hours worked under the new schedule are to be used for making this calculation.

(3) If an employee's schedule varies from week to week to such an extent that an employer is unable to determine with any certainty how many hours the employee would otherwise have worked (but for the taking of FMLA leave), a weekly average of the hours scheduled over the 12 months prior to the beginning of the leave period (including any hours for which the employee took leave of any type) would be used for calculating the employee's leave entitlement."

Based on what you have posted, I would calculate her normal schedule using #3 and calculate how many hours per week she would normally flex outside of FMLA.  If you normally allow her to flex her hours, than taking that away would be impeding her use of FMLA.  However, you can decide to NOT let her flex more than she normally does. 

This also has to interact with the rule that you can't require her to take MORE FMLA time than needed.   "... provided further that an employee's FMLA leave entitlement may not be reduced by more than the amount of leave actually taken" that shows up a little further up in the same section. So if you have allowed her to flex, you have to continue that and I would say you have to NOT count it as time taken under FMLA.

This (#3) is one reason why it is good to have exempts still fill out time sheets, because then you have that 12 month history to look back at.