Dear HR Executive,
Managing intermittent FMLA leave ranks high on the annoyance scale for HR pros. People can get doctors to vouch for the darndest things, and you never know when so-and-so is going to come down with yet another migraine and call out at the last minute -- without there being anything you can do except nod your head.
Recently, an employee in Michigan tried to raise the stakes and knock an important weapon for controlling intermittent FMLA abuse out of employers' hands.
In a lawsuit against her employer for FMLA interference, she argued that intermittent leave eligibility could carry over from one year to the next. Think about it: If she had won, employees who want to take intermittent FMLA leave would have to establish their eligibility ONLY ONCE in order to enjoy 12 weeks of leave per year ad infinitum.
In the case, Davis v. Michigan Bell Telephone Co., the employee took a number of days of intermittent leave due to depression. When the new calendar year arrived, she missed a couple more weeks of work and tried to cover them with FMLA leave. The employer refused, saying that because it calculated FMLA eligibility on a calendar-year basis, and she didn't work 1,250 hours in the 12 months preceding the new absence, she wasn't eligible. And she was fired for excessive absences.
Fortunately for employers, the court backed up the company's position.
Court didn't bite
The court said the idea of a lifetime eligibility determination went against the law and also against DOL's regs. "Congress cannot have intended this absurd result," the court said.
The truth, the court said, is that intermittent FMLA leave can't extend beyond the 12-month period in which it begins. So employers can re-evaluate at least annually whether an intermittent leave-taker has worked enough hours. (Of course, you can also run the standard certification procedures that oblige employees to get their doctor to periodically back up their need for leave.)
Of course, you may choose to run your FMLA record-keeping on either a calendar year or a rolling year. Both are legal. But whichever way you go, don't hesitate to review employee eligibility status as often as the law allows -- whenever the employee asks for a new period of intermittent leave, and at least annually.
Remember, too, to review your company's status where appropriate. If your workforce dips below 50 and stays there for more than 32 weeks in a given 12-month period, you may be able to deny FMLA leave -- intermittent or otherwise -- to everyone on the basis that employers with fewer than 50 employees aren't covered by the law.
Dave Clemens
Editor in Chief
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I have an employee that is requesting intermittent leave for two separate issues, one for himself the other for his spouse, it started in June 2008, as I understand it since both were started in June 2008 it counts cumulatively and as of June 2009 it terminates since we use a 12 month rolling calendar, am I correct?
Posted by: HR Director | March 09, 2009 at 11:19 AM