Employers, has this ever happened to you?
An employee in a critical-but-inflexible position -- say,
a customer service representative -- asks for "intermittent" leave
under the Family and Medical Leave Act. If the intermittent time off is
"scheduled," it's usually not too big a problem. Most employers can
manage to work around a situation if they know what to expect. They may be able
to hire a part-time temp to cover the times that the employee will be out, or
even juggle duties to get the necessary back-up from existing staff.
Of course, those are the situations that
clients never call me about. The ones I hear about are
those where the employee doesn't know when he or she will need to be off. The
employee (or family member) may have a chronic condition that flares up
unpredictably. (Or "conveniently," you might say if you're a cynic.)
"Hey, boss -- all this multitasking has
given me a migraine. My doctor says I'll need Fridays and Mondays off from now
Where the absences are unpredictable, it's impossible for
the employer to plan, and because the employee's position is critical, there is
no way to "let things slide" until the employee is able to come back.
One seemingly logical solution to this problem is to say
to the employee, "Look, we recognize your need for FMLA leave, but we
really can't handle frequent unpredictable absences in your position. So here's
what we'll do. We will temporarily reassign you to another position that better
accommodates recurring periods of leave. We'll leave your pay and benefits
unchanged. Then, when you're able to come back to your old job and attend on a
regular, predictable basis, we'll put you back in that position."
"Sounds great -- thank you! What's the new
"Uh, men's room attendant. It's a non-essential
position, so it will be immaterial to us whether you ever show up for work or
This rubs employee the wrong way, especially since she's
a woman. Employee goes to U.S. Department of Labor and files a complaint. You
lose, because the "temporary reassignment" option applies only if the
leave is foreseeable.
"Zelda, here is your temporary office.
A better solution?
OK, forget option 1. How about option 2: "Look, we
recognize your need for FMLA leave, but we really can't handle frequent
unpredictable absences in your position. So here's what we'll do. We'll have
you take 'block' FMLA leave even though you really need it only intermittently.
If you take it all at once, we can hire a temporary to fill in for you, and you
can relax and take all the time you need when your asthma flares up on Fridays
"But I don't want to use up all my FMLA leave when I
really only need it for Fridays and Mondays -- er -- I mean, when I really only
need it when my asthma flares up."
"That's what we're willing to do. Take it or leave
This rubs employee the wrong way. Employee goes to
Department of Labor and files a complaint. Do you win or lose?
The DOL says you lose, but a few courts have disagreed .
. . or have they? In one case, the U.S. Court of Appeals for the Eighth
Circuit* said that an
employee cannot have a valid FMLA "interference" claim unless the
employer actually denies leave to which the employee was entitled.
The judge in the
second case disagreed, but because she was in the Eighth Circuit state of
South Dakota, she was required to follow the Eighth Circuit. The
third case, from Ohio (which is in the Sixth Circuit**), involved an
employee who was required to take FMLA "block" leave because she
didn't qualify for light duty under the terms of the employer's policies.
Arguably, this is not the same as a situation where an employer requires an
employee to take "block" leave to suit its scheduling needs.
*The U.S. Court of Appeals for the Eighth
Circuit hears appeals from federal courts in the states of Arkansas, Iowa,
Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.
**The U.S. Court of Appeals for the Sixth
Circuit hears appeals from federal courts in the states of Kentucky, Michigan,
Ohio, and Tennessee.
recent decision from a federal court in Texas*** is more in line with the
DOL position, and I'm not sure it really conflicts with these other decisions.
The judge in Texas found that requiring the employee to take leave in a
"block" when she didn't want to or need to, coupled with other
evidence of FMLA-based discrimination, was unlawful "interference"
with the employee's FMLA rights.
***Texas is in the Fifth Circuit, which also
includes federal courts from the states of Louisiana and Mississippi.
The Texas case involved a critical-but-flexible position
(an account executive who was allowed to telecommute), and a legitimate, bona
fide "serious health condition": the employee's husband had
terminal cancer. His chemotherapy appointments were on Mondays and Fridays, but
presumably this was not an excuse to allow the employee (let's call her
"Patti," since that is her real name) to skip out on work. Patti's
husband died from his cancer, and about six weeks after Patti returned to work,
she was put on a Performance Improvement Plan to improve her "sense of
urgency," and even though the employer's policy called for a 90-day PIP
period, she was fired less than two months later. She also allegedly caught
grief for asking to take some paid time off to attend her son's sporting event.
You know, that boy who'd just lost his dad to terminal cancer. (In case
you were wondering, Patti still had plenty of paid time off available at the
"Build a bridge and get over it,
So, some pretty sympathetic facts for Patti. The case was
decided at the summary judgment stage, meaning that the judge had to view the
facts in the light most favorable to Patti. Patti will get a trial on her claims,
and the ex-employer will be able to present its side of the story at that
stage. A jury could ultimately side with with Patti or the employer.
You can read the rest of the allegations in the decision
-- Patti also has a claim of FMLA retaliation and one for Title VII retaliation
because she complained about the way the employer treated women (also, an age
discrimination claim that was dismissed) -- but I want to get back to this
issue about requiring an employee to take "block" FMLA leave when the
employee doesn't need it.
IS there a solution?
The DOL regulations say you can't do this. When I have a
client who is really desperate, I will suggest (even though the regs don't
specifically authorize it) requiring the employee to take "block"
leave but counting only the "necessary" time against the employee's
12-week FMLA entitlement. Any other time can be covered by PTO or short-term
disability or workers' comp, or just regular pay ("Hey -- you said you
were in dire straits!"), and it cannot be counted against the employee
for FMLA or attendance purposes.
I don't know whether anyone has ever taken me up on this
suggestion because, once I suggest it, I never hear about it again. I assume
the employers have decided it's easier to deal with the unpredictable
So, what can you do when you have an employee in a
critical-but-inflexible position who needs interimittent, unpredictable FMLA
leave? Not a heck of a lot, unfortunately.
*If you are in the Eighth Circuit, you can
try requiring the employee to take "block" FMLA leave instead. As I
said, I'm not sure the Eighth Circuit really authorizes this. If you're wrong,
then you're in for it. Reinstatement, back pay and benefits, liquidated damages
(possibly), and attorneys' fees.
*If you are anywhere else, you can do
likewise and claim that the U.S. Court of Appeals for the Eighth Circuit is on
your side. If you're wrong -- well, you know (see
*You can try my harebrained idea that no one
seems to like. (See above.)
*You can tough it out, and let the employee
have the leave on the terms on which she has requested it.
I'm not saying that any of these are good options. I
don't think they are. An employer should be able to keep its business running
when an employee has to miss a significant amount of work on an unpredictable
basis. I wish the DOL would provide employers with some workable solutions that
are legal. But I'm not going to hold my breath.
Visit the Employment and
Labor Law Insider for additional insights from Robin Shea, a partner with the national labor and employment
law firm Constangy, Brooks & Smith, LLP.
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