Intermittent FMLA leave is not forever

by on January 23, 2009 · 4 Comments POSTED IN: HR Info Center

Employers can periodically review employees’ FMLA certification

Managing intermittent FMLA leave buries the needle on the “annoying” scale. People can get doctors to vouch for the darndest things, and you never know when so-and-so will come down with yet another migraine and call out at the last minute.

Recently, an employee in Michigan tried to make things worse, by knocking an important weapon for controlling intermittent FMLA abuse out of employers’ hands.

Luckily, she failed.

ABSENTEEISM

The employee took intermittent leave due to depression. When a new calendar year arrived, she missed two more weeks and tried to cover with FMLA leave.

The employer refused, saying because it figured FMLA eligibility on a calendar year basis, and she didn’t work 1,250 hours in the 12 prior months, she wasn’t eligible.

She was fired for absenteeism.

The employee sued, arguing that intermittent FMLA leave eligibility could carry over from one year to the next.

If she’d won, employees would have to establish eligibility for intermittent leave only once in order to enjoy 12 weeks off per year – ad infinitum.

‘ABSURD’ INTERPRETATION

But the court slapped her down, saying the idea of lifetime eligibility was “absurd.”

Intermittent FMLA leave can’t extend past the 12-month period in which it begins.
So employers can reevaluate at least annually whether a leave-taker has worked enough hours.

You may run your FMLA certification on either a calendar year or a rolling year.

Either way, don’t hesitate to review employees’ FMLA eligibility as often as the law allows – whenever they apply for a new period of intermittent leave, and at least annually.

Cite: Davis v. Michigan Bell Telephone Co., No. 07-1512, 6th Cir., 9/29/08.

  • Dfinn

    I had FMLA and then STD, I had 4 surgeries in 6 moths out of work. I recently returned to work and need PT, I also had a seizure a week ago and an EEG found something wrong in my left temporal lobe, MRI was OK. I now have facial cellulitus and I boil under my arm that has to be removed next week (I can do this at lunch time and return to work). Due to the fact that my FMLA started in 2009, can I use FMLA for 2010?? Or must it be after 12 months. There is also I chance I may have epilepsy, I have been trying my hardest not to lose my job, which I love!

  • Dfinn

    I had FMLA and then STD, I had 4 surgeries in 6 moths out of work. I recently returned to work and need PT, I also had a seizure a week ago and an EEG found something wrong in my left temporal lobe, MRI was OK. I now have facial cellulitus and I boil under my arm that has to be removed next week (I can do this at lunch time and return to work). Due to the fact that my FMLA started in 2009, can I use FMLA for 2010?? Or must it be after 12 months. There is also I chance I may have epilepsy, I have been trying my hardest not to lose my job, which I love!

  • Anonymous

    Thanks for your comment. We can’t respond to questions about specific
    situations or provide legal advice, but we invite other readers to post
    comments or responses to this question. We encourage you to seek guidance
    from your HR department or, for legal questions, consult an attorney.

  • rliblogs

    Thanks for your comment. We can't respond to questions about specific
    situations or provide legal advice, but we invite other readers to post
    comments or responses to this question. We encourage you to seek guidance
    from your HR department or, for legal questions, consult an attorney.

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