How Well Do You Know Intermittent FMLA Leave?

A recent Family and Medical Leave Act case decided by the 11^th Circuit Court of Appeals offers some clarity on one of the most challenging aspects of administering FMLA, the dreaded intermittent leave. Intermittent leave is when an employee takes leave on an intermittent basis or a reduced schedule when medically necessary to care for a seriously ill family member, covered service member, or because of the employee’s own serious health condition.

The 11^th Circuit’s recent case involved an employer that provides in-home healthcare services to the terminally ill and an employee that worked as a clinical social worker with many duties relating to care plans for the employer’s terminally ill patients. The employee requested intermittent leave to care for her elderly mother who was quite ill. The employer approved her leave request.

The employer’s leave policies required employees use PTO concurrently with an approved medical leave. In the six months following her initial request for leave, the employee frequently received notices from her employer keeping her advised of her PTO usage and letting her know when her PTO balance was low. It also reminded her that exhaustion of PTO, along with absences, could adversely impact her job and benefits.

Ten months after her initial request for leave, the employer requested not only an updated certification but also additional documentation “to support the need of intermittent use of FMLA.” Shortly thereafter, the employer advised the employee that her leave entitlement was running low, that she may want to conserve her remaining FMLA leave, and that her continued time away from the workplace compromised the quality of care being provided to patients. Shortly thereafter, the employee altered the plans she had made to care for her mother, choosing not to take an approved leave.

Eleven months after she began using intermittent leave the employee was separated from her employment. She was informed that she was separated for poor performance. Her performance issues were documented by the employer. These issues included care plans not being timely updated, a patient without a care plan, time sheets for patient visits not being timely completed, and failure to coordinate the bereavement group. However, just days before her separation, the employer mentioned in a discussion regarding her performance issues, that “’quality of care’ [was] suffering due to repeated ‘emergent’ leaves of absence.”

How did the court evaluate these facts when the employee asserted an interference claim? Did it find that the employer’s record of performance issues supported the decision to terminate? Did it find that the employer interfered with the employee’s use of her FMLA entitlement? Need some help? Well, here are some FMLA facts that may assist in analyzing this fact pattern:

• The regulations provide that when an employee takes unforeseeable FMLA leave, the employee must notify the employer as soon as practicable in compliance with the employer’s usual and customary notice and procedural requirements for requesting leave.
• The regulations interpreting the FMLA provide that, aside from an annual re-certification, an employer is prohibited from obtaining additional documentation from the healthcare provider once a complete and sufficient medical certification has been obtained.
• If there is an existing certification, an employee’s notice to the employer that there is a recurrence of the need for leave is sufficient notice to the employer.
• When an employee’s FMLA leave entitlement is exhausted, any further absences are not subject to the protections of the FMLA.
• An interference claim is established when an employee shows that she was denied a benefit to which she was entitled. Benefits under the FMLA include taking leave and being reinstated following a leave period (subject to certain restrictions).
• Unlike retaliation claims, intent is not relevant to an interference claim. Interfering in an employee’s ability to take leave encompasses not only refusing to authorize such leave when an employee is qualified but also discouraging an employee from using such leave.
• To recover for interference, an employee must show that she was harmed by the interference.

Although the district court granted summary judgment for the employer on the employee’s interference claim, the 11^th Circuit Court reversed. The 11^th Circuit found that many of the employer’s statements, such as, “[y]our continued unpaid time away from the workplace compromises the quality of care we are able to provide as an organization,” discouraged the employee from using the time she was entitled to. Further, since the employee was terminated, she suffered damage.

So, you ask, how does this case provide clarity? For one, it affirms that generally employers should not be requesting additional documentation from an employee already on an approved intermittent leave. Second, employers should avoid making statements that may be interpreted as discouraging the use of leave. Next, when discussing performance issues with an employee on an intermittent leave employers should not provide a causal connection between the leave and the performance issue, i.e., focus on a discussion of the performance difficulty and ascertain what can be done by the employee (other than to stop missing so much work) to improve performance. Finally, do not forget that during the period of intermittent leave, the employer may require the employee to transfer temporarily to an available alternative position with equivalent pay and benefits, for which she is qualified and which better accommodates the intermittent nature of the leave.