The FMLA Blog

6-Month Need for Intermittent Leave Rendered Employee Unfit for Duty

Charlene Wisbey was employed b y the City of Lincoln, Nebraska as an emergency dispatcher.  The position required Wisbey to receive calls for emergency services and dispatch emergency service units on a regular basis.  Because of the potential life-saving aspect of her position, the City Expected Wisbey to function accurately while working under considerable pressure and to think and act quickly and calmly in emergency situations. 

During January-February, Wisbey used a significant amount of sick leave for an upper respiratory infection, for which she received a letter of warning.  To avoid further discipline, the City recommended that Wisbey apply for intermittent FMLA leave, which she did.  The medical certification supporting her request for intermittent FMLA leave cited recurring cycles of depression and anxiety that interfered with her sleep, energy level, motivation, and concentration.  It also stated that Wisbey was unable to perform the essential functions of her job  The certification concluded that Wisbey would need to take time off intermittently over the next 6 months or longer. 

Concerned about her ability to perform her job as an emergency dispatcher, the City directed Wisbey to undergo a fitness-for-duty exam (FFD), which she did.  The FFD concluded that Wisbey suffered from chronic relapsing depression which intermittently interfered wit her ability to function at full capacity at work, and that she was not fit for duty, especially regarding her ability to concentrate and her ongoing propensity to miss work.  The City terminated Wisbey as unfit for duty.  Wisbey filed suit alleging violations of the ADA and FMLA.

With respect to the ADA, the Court rejected Wisbey's argument that the City did not have a legitimate, non-discriminatory business necessity to require her to submit to the FFD. Citing a decision of the Second Circuit in Gajda v. Manhattan & Bronx Surface Transit Operating Autho., 396 F.3d 187 (2d Cir. 2005), the Eighth Circuit agreed that representations made in an employee's FMLA medical certification that the employee is unable to perform the functions of his or her position may serve as a legitimate, non-discriminatory basis for employer to require an FFD. 

With respect to the FMLA, the Court rejected Wisbey's claim that the City interfered with her FMLA rights, noting that she was never denied FMLA leave.  Significantly, quoting prior Eighth Circuit opinions, the Court noted that the FMLA "does not provide leave for leave's sake, but instead provides leave with an expectation an employee will return to work after the leave ends," Throneberry v. McGhee Desha County Hosp., 403 F.3d 972, 978 (8th Cir. 2005), and that "the FMLA doe snot provide an employee suffering from depression with a right to unscheduled and unpredictable, but cumulatively substantial, absences or a right to take unscheduled leave at a moment's notice for the rest of her career.  On the contrary, such a situation implies that she is not qualified for a position where reliable attendance is a bona fide requirement."  Spangler v. Fed. Home Loan Bank of Des Moines, 278 F.3d 847, 853 (8th Cir. 2002). 

Because Wisbey requested "intermittent leave" for "six months or longer," the Court concluded that she did not have a right to FMLA leave.  Without the right to FMLA leave, the City "could not have interfered with Wisbey's rights under the FMLA."  The Court also rejected Wisbey's FMLA retaliation claim, finding that the decision to terminate her was not casually related to her request for FMLA leave a month before, but was due to the results of the FFD.

Comment:  Long-term intermittent absences with little predictability or notice are the bane of employers who need employees present to get the work done.  Of course, from the perspective of the employee who needs intermittent leave due to their own serious health condition or to care for a family member with a serious health condition, this is why the FMLA exits- to protect the employee from having to make a choice between their job and caring for their own or a family members medical needs.

For my money, the Eighth Circuit went too far by stating that an employee who needs intermittent FMLA leave for "6 months or more" somehow forfeits the right to take FMLA leave. The statement is flat out wrong.  If an eligible employee meets all of the criteria, the FMLA affords the employee the right to take up to 12 weeks of intermittent FMLA leave for their own serious health condition, or the serious health condition of a covered family member, over the course of a 12-month leave year.  Except perhaps in the Eighth Circuit, an employer that denied an eligible employee intermittent FMLA leave after six months - even though they have a certification stating that they needed intermittent leave for more than six months - relying on Wisbey would, in my estimation, interfere with that employee's FMLA rights.  That could cost the employer big time in an FMLA interference suit.

What employers should take away from Wisbey is that an employee who needs intermittent FMLA leave long-term or forever may not be qualified for their position.  Obviously, this will depend on the job duties of the position, including whether regular and predictable attendance is required.  If they are not fit for the position because of their FMLA-covered condition, employers do not have to continue to employ the individual.  The fact that, if employed, the individual would have the right to take intermittent FMLA leave is not controlling.  Think of it this way: the FMLA entitles an employee to leave.  If the same FMLA covered-condition that entitles an employee to take leave also interferes with the employees ability to adequately perform their job when they are at work, the FMLA does not protect the employee from discipline for poor performance for the job they did when at work.    

Employers would be well-advised to proceed with caution in applying Wisbey.  Other courts may be less quick to find that an employee needing intermittent FMLA leave is unfit for duty and, therefore, may be terminated -particularly where the employee has not exhausted his or her annual entitlement to FMLA leave.

The decision is available at http://www.ca8.uscourts.gov/opns/opFrame.html

  

Can an Eligible Employee Take Leave on an Intermittent or Reduced Leave Schedule Basis to Care for a Spouse?

Not according to the DOL.  When it comes to the ability of an employee to take leave on an intermittent or reduced leave schedule basis, it appears that the DOL forgot to include spouses. 

By statute, the FMLA permits an eligible employee to take leave intermittently or on a reduced leave schedule in order to care for a spouse, son, daughter, or parent with a serious health condition.  29 USC 2612(b)(1). 

The new DOL regulations, however, say something a bit different.  According to Section 825.202(b)(1), intermittent leave (what happened to reduced schedule?) may be taken for a serious health condition of a parent, son, or daughter, or for the employee's own serious health condition...which requires treatment periodically, rather than for on continuous period of absence..."  No spouse.

Similarly, Section 825.202(b)(1) provides that intermittent leave or leave on a reduced leave schedule (nice of you to show up) taken because of one's own serious health condition, or to care for a -- wait for it-- parent, son, or daughter with a serious health condition...there must be a medical need for the leave... 

Again, spouse is not included as a covered family member for purposes of serious health condition intermittent or reduced schedule leave.

The last sentence of Section 825.202(b) indicates that medical necessity includes leave to provide care or psychological comfort to a covered family member with a serious health condition.  This might be evidence that spouse is covered.  The counter argument would be that "covered family member" appears later in the same paragraph that limits the coverage to employee, parent, son, or child, and, therefore, it means only those family members and not spouse.  The same argument would apply to the generic reference to "family member" in 825.202(b)(2). 

Comment:    Title I Employer's would be well-advised to follow the statute and allow eligible employees to take leave on an intermittent or reduced leave schedule to care for a spouse with a serious health condition, all other conditions being met.

I suggest that the DOL at least issue an advisory opinion clarifying the issue.  

Court Invalidates DOL Regulation Prohibiting Fitness for Duty Certification on Return from Intermittent FMLA Leave

29 CFR 825.310(g) prohibits an employer from conditioning an employee's return to work from intermittent FMLA leave on the production of a fitness for duty medical certification.  The validity of that prohibition was addressed by the court in Phipps v. County of McLean, No. 07-cv-1160, 2008 U.S. Dist. LEXIS 79714 (C.D. Ill. Oct. 7, 2008).  

Phipps sought to return to work from approved intermittent FMLA leave after, in this instance, a six-week absence.  He had taken approved FMLA leave on prior occasions due to the same serious health condition.  When she sought to return to work Phipps was told that she must provide a physician's certification indicating that she was medically cleared to perform her job duties.  She did not secure the certification.  Phipps was subsequently terminated for failing to call or show up to work her scheduled shift.     

In her FMLA suit, Phipps argued that her employer violated the FMLA by conditioning her return to work from FMLA leave on the production of a fitness for duty medical certification.  She cited the prohibition on such certification in 29 CFR 825.310(g).  The court rejected the employer's argument that absence was not intermittent because of its six-week duration.  The court noted that 29 CFR 825.203(d) places not limit on the size of an increment of intermittent leave.

The court, however, accepted the employer's challenge to the prohibition on fitness-for-duty certifications during intermittent leave set forth in 29 CFR 825.310(g).  Applying the analysis of the Supreme Court in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984), the court found that 29 CFR 825.310(g) was an impermissible construction of the FMLA where the employee seeks to return from an extended intermittent absence.  The court noted that the statute does not distinguish between intermittent and block leave with respect to employers' entitlements to fitness-for-duty certifications.  The court went on to find that the absolute prohibition on fitness-for-duty certifications on an employee's return to work from an extended, intermittent absence fails to accommodate the legitimate interests of employers, one of the central purposes of the FMLA.

The court observed that the prohibition 825.310(g) contradicts the requirement in 825.214(b) that an employee must be able to perform all essential job functions on return from FMLA leave.  An employer, because of the absolute prohibition, would not have the means of establishing that fact prior to accepting the employee's return from extended intermittent leave.  The absolute prohibition, the court observed, is based on the DOL's unreasonable assumption that all employee's returning from intermittent leave --no matter how large the increment of intermittent leave taken or the reason for the leave, are automatically fit upon their return to work.  Without medical evidence,the automatic right of return from intermittent leave "creates the potential of putting other employees, patients, customers and clients in dangerous situation" due to the overly optimistic self-assessment of an employee's ability to safely return to work from intermittent leave.

The court recognized that 825.310(g) was intended to protect employees who require intermittent leave from the burden of producing a fitness-for-duty certification for each and every increment of leave.  The regulations, the court observed, "would be reasonable if the definition of intermittent leave were pared down to cover only employees who need to take one or two days, here and there, to treat an illness."  Where, however, as in the case, an employee takes intermittent FMLA leave in large blocks, the absolute prohibition on fitness-for-duty certifications as a condition to return an employee to work is unreasonable.  

The Court found that the employer did not violate the FMLA by conditioning Phipps return to work on the production of a fitness-for-duty medical certification.  The court awarded summary judgment to the employer.

Comment:  The decision invalidates 825.310(g) where the employee seeks to return from a lengthy block (several weeks) of intermittent leave.  If the intermittent absence was of a relatively short duration, the court would likely enforce the 825.310(g) prohibition on fitness-for-duty certifications.

The case is also interesting because it references as support the DOL's proposal (73 Fed. Reg. 7876, 7922, 7985 (Feb. 11, 2008)) to allow fitness-for-duty certifications as a condition of returning an employee from intermittent leave.  As proposed, the DOL would permit an employer to require an employee on intermittent leave to provide a fitness-for-duty medical certification every 30 days if an employee has used intermittent leave during that period and reasonable safety concerns exist.  The DOL proposal is not effective, yet. 

       

Intermittent Leave Expires When Approved Frequency Exceeded

Absences in excess of the approved frequency for intermittent leave, even if caused by the same serious health condition, are no longer treated as intermittent absences.  These excess absences may, however, be a new basis for FMLA leave.  Because these excess absences are not part of a series of intermittent absences but may be an independent basis for FMLA leave, the DOL FMLA rules governing intermittent absences do not apply. 

In Barnhouse v. Honda of America Mfg., Inc., No. C-2-04-0987, 2007 U.S. Dist. LEXIS 81562 (S.D. Ohio Nov. 2, 2007), the employee was terminated for violating Honda's attendance policy.  Barnhouse had been approved in January 2004 for intermittent leave absences of two episodes a month, with each episode being one or two days in duration (e.g., up to 4 days a month) for migraine-related headaches.  He immediately began to exceed the frequency.  He incurred 11 intermittent absences in March 2004, and 19 intermittent absences in April 2004. 

Under Honda policy, an employee returning to work from leave with work restrictions must notify Honda of his or her return at least 48 hours in advance, to allow Honda time to find a job assignment within the employees medical restrictions.  If Honda could not immediately accommodate the restrictions, the employee was not permitted to return to work.  In that case, Honda policy required that the employee cover the time away (e.g., two days) from work with available leave.  If the employee did not have leave available, the time away from work counted as an "occurrence" for purposes of Honda's attendance/discipline policy.  Barnhouse was told that if he incurred another occurrence he would be terminated. 

Beginning March 31, 2004, Barnhouse began to use intermittent leave on a daily basis, continuing until April 21, 2004.  On April 22, 2004, he returned to work and presented slips for his days off, as well as a return to work slip from his treating physician.  The return to work slip included work restrictions for an unrelated back condition.  He did not, however, give Honda the requisite 48 hours notice before showing up to work on April 22.   

Honda told Barnhouse he should return in two days.  Barnhouse did not have any paid leave to cover these two days.  As a result, his absences on April 22 and 23 were counted as occurrences for purposes of progressive discipline.  Barnhouse subsequently did not return to work, but began another extended absence.  Honda terminated Barnhouse for violation of the attendance policy.

Barnhouse sued, alleging that Honda interfered with his FMLA rights when it refused to return him to work on April 22.  Honda defended, asserting that it had the right to terminate Barnhouse for violating Honda's attendance policy.  Barnhouse, Honda argued, was properly charged an occurrence for April 22-23 when he failed to give two days notice of his return to work. 

Barnhouse argued that he should have been immediately returned to work from FMLA leave.  He also argued that Honda did not have the right to delay his return to work from intermittent FMLA leave.  Because the charged April 22 and 23 absences were intermittent leave for his migraines, Barnhouse argued that Honda was not permitted to delay his return to work for two days as generally permitted by 29 CFR 825.309(c) and 825.312(e). 

In pertinent part, 29 CFR 825.312(e) provides:

If an employee is able to return to work earlier than anticipated, the employee shall provide the employer two business days notice where feasible; the employer is required to restore the employee once such notice is given, or where used prior notices was not feasible.

The court found that be being off work 15 consecutive days in April, Barnhouse greatly exceeded the 4 approved intermittent absences a month he was allowed.  By exceeding the approved frequency of absences, the court found that his intermittent leave was converted to continuous leave.  According to the Court:

Once Plaintiff exceeded the approved leave amount, his need varied from that previously approved.  If Plaintiff intended to take April 22-23 as part of his FMLA leave, he was required to notify Defendant Honda.  Further, based on the change of circumstances and his extended time off, Plaintiff was obligated to provide two days notice of his return to work date in accordance with Honda policy.

Comment: The upshot of Honda is that absences that occur after an employee exceeds the approved amount of intermittent FMLA leave are no longer intermittent absences, but should be treated as an independent basis for FMLA leave.  As such, the employee is required to give notice of the need for FMLA leave.  Following the court's logic, an employer would also be entitled to request medical certification and a return to work fitness for duty certification for the excess leave.  A FFD certification is generally prohibited where an  employee takes FMLA leave intermittently. 

The decision imposes consequences where an employee exceeds the approved number of intermittent absences.  The DOL rules are silent in this critical area.   

Chronic Lateness to Work Not Protected by the FMLA

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.   

 

Requiring Employee to Certify that Intermittent Absence Is Related to Approved FMLA Condition Upheld

Verizon did not interfere with an employee's FMLA rights when it denied her FMLA leave for failure to submit a personal certification form attesting that each of several intermittent absences at issue was due to her previously approved FMLA-covered migraine condition.  Nor did Verizon's policy requiring all employees with approved FMLA conditions requiring intermittent leave to submit such personal certification constitute harassment in violation of the anti-discrimination provisions of the FMLA.   

FMLA Eligibility Does Not Last Forever

FMLA eligibility does not last forever once attained thereby prohibiting an employer from ever recalculating eligibility. 

In Davis v. Michigan Bell Tel. Co., No. 06-10513, 2007 U.S. Dist. LEXIS 18940 (E.D.Mich. March 19, 2007), the employee first met the FMLA eligibility requirements for depression on September 24, 2004.  She required and was granted additional intermittent absences in October, November, and December 2004.  In January 2005, the employer recalculated Davis' eligibility and denied her FMLA leave because she had not worked 1250 hours in the 12 months preceding her first request for leave after the new year.  The employer used the calendar leave method for calculating the 12-month FMLA leave year.  Her first request for leave after the new year was for depression.

David argued that Michigan Bell violated the FMLA when it recalculated her eligibility in January 2005.  According to Davis, once she became eligible for a serious health condition that requires intermittent leave, her eligibility cannot be redetermined with respect to that condition.  The Court disagreed.

The Court found that, generally, intermittent absences stemming from the same serious medical condition all relate back to the original eligibility and an employer is precluded from recalculating eligibility for each new period of absence.  However, there is a limitation. The Court continued:

An employer may recalculate an employee's FMLA eligibility at the commencement of the first absence in a new 12-month period as designated by the employer. 

As support, the Court cited the decision in Barron v. Runyon, 11 F. Supp. 2d 676, 681 (E.D.Va. 1998) and the Department of Labor (DOL) Opinion Letter FMLA-112, 2000 WL 33157366 (Sept. 11, 2000).  The DOL Opinion Letter provides:

[I]t is our position that the 1,250-hour eligibility test is applied once, on the commencement of a series of intermittent absences, if all involve the same FMLA-qualifying serious health condition during the same 12-month FMLA leave year. The employee in such a case remains entitled to FMLA leave for that FMLA reason throughout the 12-month period, even if the 1,250-hour calculation is not met at some later point in the 12-month period during the series of related intermittent absences.

Comment:  FMLA eligibility is determined as of the first absence in a series of related intermittent absences for the same covered condition, but only for the 12-month period that the employer has elected as the FMLA leave year.  Once that 12-month period expires an employer has the right to determine anew if the employee meets the FMLA eligibility requirements, even if the leave is for the same serious health condition the employee met the previous year.  The upshot of the decision and the DOL Opinion letter is that eligibility does not attach to each serious health condition and last forever once met. 

FMLA Covers Leaves of Only a Few Minutes During Workday

In Collins v. The United States Playing Card Co., No. 1:05CV637 (S.D.Ohio Nov. 6, 2006), the employer moved for the dismissal of the employee's FMLA interference claim arguing that the employee's requests for breaks of a few minutes each during the course of the workday to get something to eat (he had diabetes) were not covered by the FMLA.  The court disagreed. The Court found that leave during the workday by a diabetic employee in order to eat to correct low blood sugar when medically necessary may qualify as intermittent leave under the FMLA.

The Court initially noted that there is no limit on the size of an increment of leave when an employee takes intermittent leave under the FMLA.  The Court distinguished the the two case proffered by the company as support for its position that Collins' unscheduled breaks were not protected by the FMLA, Mauder v. Metropolitan Transit Auth., 446 F.3d 574 (5th cir. 2006) and Hensely v. Cooper Standard Automotive, 2005 WL 1981448 (E.D.Tenn. Aug. 17, 2005).   

In Mauder, the plaintiff employee was diabetic.  He did not advise his employer that he had been diagnosed with diabetes.  The insulin prescribed by Mauder's doctor had a side effect of uncontrollable bowel movements.  As a result, Mauder made frequent trips to the bathroom that were not always at the scheduled break time.  Mauder did not inform his supervisor of his medical condition until she emailed him concerning his tardiness in returning from scheduled breaks.  When his supervisor asked Mauder to provide more information regarding his medical condition, Mauder refused.  The Court found that Mauder failed to demonstrate that his medical condition left him incapacitated as required by the state, and thus he was not entitled to FMLA leave. 

The Court distinguished Mauder by finding that Collins informed his employer of his condition with supporting medical certification of his need to leave.  The Court concluded that Mauder did not find that the FMLA does not allow for periodic time away from one's work station.  Rather, the Mauder court merely expressed in dicta that it had been "unable to locate a case where 'temporary' FMLA leave was awarded in such a context-where the leave given does not constitute time away from work, but merely periodic time away from a desk throughout a work day."

In Hensely, the plaintiff had undergone rotator cuff surgery and was required to perform 15-to 20-minute physical therapy exercises, which she did each day at work in the first-aid room.  The employer terminated Hensley for sleeping in the first-aid room.  Hensley sued alleging that she was never informed that intermittent FMLA leave was available, and that her termination violated the FMLA.  The court concluded that the 15- to -20-minute exercises did not qualify as intermittent FMLA leave.

The Court in Collins' distinguished Hensely noting that Hensely never applied for intermittent FMLA leave for her exercises and Hensely had not been provided notice from her employer that she was eligible for FMLA leave.  Collins, on the other hand, specifically requested intermittent FMLA leave to take breaks due to his medical condition. 

The Court looked favorably on the decision in Sabbrese v. Lowe's Home Centers, Inc., 320 F.Supp. 2d 311 (W.D.Pa. 2004).  In that case, a diabetic employee was requires to eat a scheduled intervals in order to control his blood sugar.  One day Sabbrese left for lunch early in order to eat because he was feeling lightheaded and nauseous.  He was disciplined for leaving his post early.  He was terminated when he made physical contact with his supervisor at the disciplinary meeting.

Relying on Sabbrese, the DOL regulation that there is no limit on the size of an increment of intermittent leave, and Collins' eligibility for intermittent leave, the Court found that Collins may pursue his FMLA interference claim on the basis that the period of time for which he sought leave can qualify as intermittent leave under the FMLA. 

Comment:  I believe the decision is a correct interpretation of the DOL intermittent leave regulations.  According to the Court in Collins and Sabbrese, intermittent FMLA leave is available for brief periods of absence from working, even though the employee remains at work.   

Intermittent FMLA Does Not Require Reduction in Workload

In Kumar v. UPMC Physician Services, No. 04-1239, 2006 U.S. Dist. LEXIS 44050 (W.D.Pa. June 28, 2006), the court rejected that employee’s contention that the employer interfered with her FMLA rights by not reducing her workload during the period that she was using intermittent FMLA leave, and by instructing her to complete her workload prior to taking FMLA leave.  It was undisputed that the employee received more than 12 weeks of FMLA leave.  She was not told that she could not take FMLA leave because her workload was too demanding.  She was properly reinstated to her former position on her return from FMLA leave.  The court noted the absence of judicial support for her argument that a claim under the FMLA exists “because common sense tells the employer that when an employee takes leave or a reduced work schedule and thus works fewer hours per week, the employee’s workload should be adjusted.”  The court also noted that work was reassigned from the employee during this time.  The court also found that the employee’s supervisor had not ordered her to finish work before she went on FMLA leave, but asked her to try to finish the work.  The court found that this did not deny or discourage the employee from taking FMLA leave.

Comment:  The FMLA does not specifically require an employer to reduce an employee’s workload during a period of FMLA leave, including periods of leave on an intermittent or reduced leave scheduled basis.  Of course, employers cannot discriminate against employees who take FMLA leave.  Therefore, if the employer has a policy of practice of reducing workload on employees who take non-FMLA leave on an intermittent or reduced leave schedule basis, the employer would be well advised to apply that policy to employees on FMLA leave.