Monday, January 10, 2011

Employment Law: FMLA: Dealing with Intermittent Leave

Many employers who deal with the Family and Medical Leave Act's ("FMLA") provisions for intermittent leave know what a headache it can be.

What do we mean by "intermittent" leave? The FMLA provides that an employee can take time off on an occasional basis, as opposed to taking off work for a predetermined block of time, such as a month, week or entire days at a time.  This is only allowed if the employee's doctor certifies that such arrangements are medically necessary.  The employee is purportedly required to schedule this intermittent leave in a manner that will not be disruptive to the employer's operations. 

An employee can use intermittent leave if they themselves have a qualifying health condition, or where a family member's condition is intermittent and where the employee is needed only intermittently. For example, an employee who needs to care for a child might normally share the care of this child with other family members or third parties, but must be available in emergencies.

An employee can take intermittent or reduced schedule leave for a variety of reasons:
  • planned medical treatment that is medically necessary;
  • unanticipated medical treatment that is medically necessary;
  • recovery from treatment;
  • recovery from a serious health condition; or
  • providing care or psychological comfort to an immediate family member with a serious health condition.
Some common specific examples are employees who suffer from severe chronic conditions such as diabetes, asthma, or migraines, but are usually able to report to work and perform the job.  Because of the nature of the condition, it is impossible to predict when the employee will suffer an "attack," and therefore need a brief time off period or seek treatment.  In such cases, the physician will certify the employees condition, but rather than scheduling a leave of absence and a date of return, the certification will explain that the condition is not likely to ever clear up, and the need for time off will be open ended. 

While this provision of the FMLA is obviously well intentioned, and people who suffer from these kind of debilitating conditions can sympathize with the need for intermittent leave, it has been my experience that managing intermittent leave serves as a "migraine headache" for employers.  For example, an employee will present a doctor's certification which indicates the employee needs unscheduled leave with little or no notice to the supervisor based upon symptoms that are subjective or unverifiable for an open-ended period of time.  Then, at the drop of of a hat, an employee will request time off based on "moving targets" such as pain or fatigue. This can happen in the middle of a busy work day -- and if the condition manifests itself in truly subjective ways, such as a psychological disorder, and the employee starts taking more and more intermittent time off, and employer can feel like he's being taken advantage of.   

A client of mine that ran a free standing long term care facility (a nursing home) called me to complain about employees so taking advantage of intermittent leave that the manager wished to institute testing procedures to verify if employees were truly ill.  I warned the manager that if a physician certified the condition, its difficult for an employer to second guess the diagnosis -- we must leave such interpretations to the professionals, and run the risk of a claim for retaliation or interference if we insist on making employees jump through additional hoops.  But the manager complained that I didn't understand the depth of the problem.  He proceeded to send me copies of records.  A significant portion of his nurse aide employees had been certified for intermittent leave for conditions such as diabetes or migraine headaches.  It was ironic how on Fridays or Mondays in the summer when the weather was nice how many of these employees would suddenly need to take time off to treat their conditions.  It was significant enough an issue that the facility often had to hire agency staff to fill in for these absences at great expense.  The manager felt that these employees were gaming the system.   

Usually, there is little an employer can do to address the issue when the medical condition and need for intermittent leave is certified.  The key is managing the problem.  

One possible way to address the problem was discussed in a recent federal case, decided by the 8th Circuit Court of Appeals for an employer located in Nebraska.  It gives employers some hope that they might not need to grant a request for this kind of leave because the need for frequent, unscheduled, unpredictable leave over an extended period of time might mean that the employee is not qualified for duty. 

In Wisbey v. City of Lincoln, Neb., the plaintiff  worked as an emergency dispatcher for a municipality.  The job description for the position required the plaintiff to work in high pressure situations, including the ability to "think and act quickly and calmly" in helping respond to emergencies.   Plaintiff sought approval for intermittent FMLA leave because of needing time off to deal with some psychological issues -- specifically depression and anxiety, stating in her application that she had a serious health condition that rendered her unable to perform the essential functions of her job. She submitted a medical certification from her physician, stating that she suffered from recurring depression and anxiety, which interfered with her sleep, energy level, motivation, and concentration. The doctor stated that she would require intermittent leave "over the next 6 months or longer." He left blank the "anticipated return to work date."

In light of the certification, the City questioned whether plaintiff was able to adequately perform her job as an emergency dispatcher. The City scheduled a fitness for duty examination with a psychiatrist, who reported that plaintiff suffered from "chronic relapsing depression" that "intermittently interferes with her ability to function at full capacity at work vis-a-vis tiredness," and that she was not "fit for duty as described in her job description, especially as related to tiredness, her ability to concentrate and her ongoing propensity to likely miss work."

In response, the City initially put plaintiff on administrative leave with pay and scheduled a Personnel Board hearing. At the hearing, plaintiff testified that her fatigue would not interfere with her work, because she would simply stay home when she felt tired. After the hearing, the City terminated plaintiff. .

Plaintiff sued the City, claiming that her termination violated several Federal laws, including the FMLA.  The Federal District Court granted summary judgment for the City, and Plaintiff  appealed.

The Court of Appeals affirmed. The Court explained that the FMLA supports two kinds of claims -- for "interference" and "retaliation." To establish an interference claim, an employee need only show that an employer denied some benefit to which the employee was entitled under the FMLA. The court determined that there was no valid claim for interference because plaintiff was never actually denied any FMLA leave. But the Court held that even if plaintiff's FMLA request had been denied, the FMLA did not give her the right  "intermitent leave" for "six months or longer." Quoting a 2005 decision in Spangler v. Fed. Home Loan Banke of Des Moines, the Court stated:
Even had Wisbey's FMLA requests been denied, the FMLA does not 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 occupational qualification....
As for the retaliation claim, the Court held that plaintiff had lost her job because she was not fit for duty, not because of any exercise of rights under the FMLA.

What does Wisbey mean for Employers?

It certainly appeals to supervisors who regularly face employees who treat long-term intermittent FMLA leave as a ticket to take time off whenever they feel like it, without notice or further explanation. However, business owners must take care.  The plain language of the FMLA clearly allows for intermittent leave over extended periods of time.  Medical certification of the need for intermittent leave is not to be taken lightly.  However, Wisby suggests that in certain situations, such as safety-sensitive positions and jobs where regular attendance is a crucial requirement, an  employee's serious health condition could render the employee unfit for duty, regardless of the availability of leave under the FMLA. In such cases, it might be permissible for an employer to terminate an employee's employment without first allowing an employee to exhaust all available FMLA leave. However, employers should be cautious about exercising that option, as other courts (such as our own 7th Circuit here in Illinois and Indiana) faced with different factual scenarios may be less friendly to the unfit-for-duty argument.

Another way to deal with intermittent leave is to make sure the employer is carefully and accurately tracking the time off the employee uses.  The rules promulgated to allow for implementation of the FMLA allow  employees to use time frames as small as hours – perhaps even fractions of hours – as the basis for an episode of intermittent leave, provided the medical certification requirement is met. If an employer keeps track of how much time off the employee has taken, an employee who has been "abusing" or "gaming" the system might use up all of their statutorily allotted leave time.  An employer is not required to give more time off than necessary -- giving the employer the opportunity to end the employment relationship because there is no time off left to give.

All eligible employees are entitled to 12 workweeks of leave during any 12-month period.  But the regulations define a “workweek” as the average time worked per week by the employee while logging the necessary 1,250 hours in the previous 12 months so that the employee is FMLA eligible.

For example, if an employee is full time (i.e. 40 hours per week) they get 12 5-day weeks of leave.  But where an employee regularly works a 4 day week, they might meet the 1,250 hour FMLA threshold, but will only get 12 4-day weeks of leave. So, if an employer is keeping track of leave an employee's leave time and  the leave is being taken intermittently, the full time employee will have 60 days/480 hours of FMLA leave, the 4 day per week employee will have only 48 days/384 hours).  Then, if the employer adopts a policy to count all time off because of illness towards FMLA (including paid sick time -- FMLA leave is generally unpaid time off), then the employee is better positioned to deal with abuse of intermittent leave. I recommend coming to an understanding with employees using intermittent leave prior to commencement of any of the leave time,  particularly where the employee is not working 5 days a week, and get it in writing, either as part of the documentation sent to an employee regarding notice of the FMLA leave, or a separate letter agreement.

It has been my experience that employees who appear to abuse intermittent FMLA leave also take a lot of time off, or try to excuse other time off,  for other reasons. As absences mount, the ability to deal with an employee simply because they aren't there to do the job becomes a little easier. It may also connect to the Wisby concept of not being fit for duty because they aren't there to do the job.

Of course, some employers rely on strict attendance policies which only allow for a limited number of absences.  This is dangerous if not applied within the context of the FMLA.   For example, requiring intermittent leave takers to provide some kind of notice to the employer when they are taking time off, or to help arrange for a replacement to cover for them are possible solutions, too, but the FMLA does not allow for absolute standards where the health condition is unpredictable.  Employers are required to be flexible. 

Finally, the successful management and tracking of intermittent leave time can be a win/win situation.  A valued employee who happens to suffer from a condition (or has a family member who suffers from a condition) that requires intermittent family leave will be grateful for the opportunity to use the time off when needed, and that the employer has treated them fairly.  Effective record keeping and established employment policies which are applied in an even-handed manner go a long way to avoid FMLA claims in this area.

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