- Blog post
Intermittent FMLA leave is not forever
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.
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.
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.