In Brown v. Eastern Maine Med. Center, No. 06-60-P-H, 2007 U.S. Dist. LEXIS 76967 (Me Oct. 15, 2007), the court found that the time (a few minutes to a half hour) an employee was chronically late for work was not protected "intermittent leave" under the FMLA.
Brown was employed as a nurse technician by the Medical Center from June 2002 until her termination on November 3, 2005, for chronic lateness. Brown worked three days a week on a shift that began at 6:30 a.m. The Medical Center repeatedly informed Brown that she must arrive to work on time or she would be considered "tardy," which could lead to discipline. Notwithstanding these warnings, Brown was persistently late throughout her employment, usually by only a few minutes but occasionally up to a half hour. Brown never asked permission to be late to work. Brown did advise the Medical Center that she believed her tardiness was the result of being sick with lupus and because she was depressed. Brown was twice suspended tor three days for chronic lateness and absences(45 late arrivals/absences & 52 absences/late arrivals). Brown was never late to attend medical treatment.
Brown suffered from depression and fatigue throughout her employment. She consulted with a number of doctors in search of a diagnosis and treatment, unfortunately without success. Brown advised the Medical Center that she believed her tardiness was due to depression-related illness. Prior to her termination, the Medical Center offered Brown FMLA leave. Brown rejected the offer because she could not afford to take unpaid leave. The Medical Center terminated Brown effective November 3, 2005, for violation of its attendance policy during August, September, and October 2005. Brown sued alleging that her termination violated the FMLA.
The court initially found that Brown did not suffer from a chronic serious health condition that rendered her unable to perform the functions of her position. Brown, the court observed "could perform the functions of her position" when she was at work; she simply could not get to work on time. The court continued:
But to treat chronic lateness, even if caused by a medical condition, as an incapacity, or inability to perform, that requires intermittent "leave" for the brief duration of the lateness, distorts the English language and trivializes the purpose of the Act.
The court distinguished Brown from the example given in 29 CFR 825.203(c)(1) that intermittent leave was available to a pregnant employee suffering from periods of severe morning sickness. Unlike other cases where diabetic employees needed unscheduled breaks of short duration in order to eat to correct low blood sugar, Brown, the court observed, did not require leave for the duration of an attack of some sort (such as morning sickness or low blood sugar), ending when it was over or treated. Rather, what Brown needed, the Court continued,
was "immunity for her perennial lateness of a few minutes caused by a medical condition that made her resist getting out of bed to go to work. Lateness is not leave."
The court went on to find that Brown had not demonstrated a medical need for her lateness. Rather,
Brown has demonstrated a medical cause for her chronic lateness (impossible for her to be on time) and a desire for FMLA immunity, but I conclude that she has not shown a medical need to take leave in those increments.
The court explained that that 825.203(c)(2) permits intermittent leave for "absences" in cases of incapacity or inability to perform even if the employee does not receive treatment. However, the court determined that the regulation did not apply as it appears in a subsection that allows intermittent leave for treatment or recovery, neither of which are relevant to Brown's chronic lateness.
The court also found that classifying chronic tardiness as intermittent leave would "preclude useful invocation of the features in the FMLA regulatory framework that protect against employee abuse of FMLA leave and minimize disruptions to the employer." As examples, the court noted that allowing intermittent leave for chronic lateness would render ineffectual the employee's obligation to schedule their leave to avoid disruptions to the employer's operations and the employer's ability to find replacements.
Comment: The decision, in my opinion, is problematic. The decision rests on the dubious proposition that 29 CFR 825.203(c) does not cover intermittent absences for incapacity in the absence of treatment or recovery. The regulation reads:
Intermittent or reduced schedule leave may be taken for absences where the employee or family member is incapacitated or unable to perform the essential functions of the position because of a serious health condition even if he or she does not receive treatment by a health care provider.
The court in Brown strangely interprets the above language as permitting intermittent leave only for treatment or recovery. Such an interpretation runs counter to the intent of the DOL. In comments accompanying the final FMLA regulations, the DOL rejected the suggestion that intermittent leave should be limited "solely to those times which are scheduled for treatment, recovery from treatment or recovery from illness." 60 Fed. Reg. 2180, 2202 (Friday, Jan. 6, 1995). The DOL modified the regulations to allow intermittent leave to cover treatment and recovery. Additional, the DOL went on to observe:
The employee will also be entitled to take leave intermittently or on a reduced leave schedule for periods of disability to due to a chronic serious health condition..."
Moreover, it is clear that at all relevant times Brown was receiving medical treatment for her chronic conditions of depression, fatigue, and lupus.
The court's view is contradictory. The court recognized that an employee could take unscheduled intermittent FMLA leave for morning sickness. See 29 CFR 825.203(c)(1). Applying the logic of the court, however, if the pregnant employee was absent due to a bout of morning sickness and was not receiving treatment or or was not recovering, the leave would not be covered. The rationale of the court's decision in Brown necessarily renders the plain language of 825.203(c)(1) and 825.203(c)(2) meaningless.
The courts rationale also appears to rest on an employer's ability to establish a razor thin distinction between intermittent absences where there is "medical need" (which are covered) and absences resulting from a "medical cause" but no need (which are not covered). In order for their to be a medical need, the court in Brown apparently requires that the serious health condition be the direct cause of the absence. For example, morning sickness causing illness that prevents the employee from being at work on time. In Brown, the court characterized the employee's depression as causing her to "resist getting out of bed to go to work." I candidly don't get the distinction. To me, there appears little practical difference between an employee who elects not to get out of bed due to morning sickness from an employee who elects not to get out of bed due to depression. Both are caused by an underlying medical condition. As such, in both cases there appears to be a medical need for leave. The Brown court appears to foster a prejudice against absences due to psychiatric illnesses and in favor of physical illnesses. The FMLA makes no such distinction.
Finally, the court's general hostility to unforeseen intermittent FMLA leave is also demonstrated in the other justification for its decision: that coverage of tardiness conflicts with an employee's obligation to schedule leave to avoid workplace disruptions and the ability of an employer to secure replacement workers. Taken to its logical conclusion, the court's position would render all unforeseen intermittent leave outside of the protections of the FMLA. While this might be a welcome outcome for employers burdened with FMLA administration, the position runs counter to the plain language of the Statute and DOL regulations.
Employers should proceed with caution before denying unforeseen, intermittent FMLA leave for tardiness based on Brown.