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Right to intermittent FMLA Ends When Employee Falls under 1250 Hour Service Requirement

    Client Alerts
  • October 31, 2008

Requests for intermittent leave under the Family and Medical Leave Act are among the most difficult and frustrating legal issues for employers.  Unanticipated absences can cause significant disruption for employers forced to deal with the unexpected departure of an employee from work.  A new case from the Sixth Circuit Court of Appeals offers employers guidance in dealing with intermittent leave issues in some situations.  In Davis v. Michigan Bell Tel. Co., the employer’s FMLA policy granted leave on a calendar year basis.  In 2004, the employee was deemed eligible for intermittent leave due to depression, and began missing significant amounts of work.  When these absences continued into the beginning of 2005, the employer deemed the employee ineligible for further FMLA leave, and terminated her employment for unexcused absences related to the depression.

She sued, claiming interference with her FMLA rights.  In response, the employer contended that as of January, 2005, the employee was no longer eligible for FMLA leave, because she had not worked 1250 hours in the prior calendar year.  The Sixth Circuit affirmed summary judgment for the employer.  The court rejected the plaintiff’s contention that because the employer granted the leave in 2004, it could not reevaluate her continuing eligibility for intermittent leave for the same medical condition just because a new calendar year started.  The Sixth Circuit concluded that ineligibility for FMLA leave trumps an interference claim.  The employer is entitled to reevaluate eligibility for each absence under a general grant of intermittent leave.

Most employers use the rolling year rather than the calendar year method for judging eligibility for FMLA leave.  Under Davis’ reasoning, the employer would be entitled to terminate further entitlement to FMLA leave as soon as the employee has not worked 1250 hours in the one year period prior to the next absence.  Unfortunately, most employees on intermittent leave do not miss enough work to fall below this threshold.  However, human resource managers should track these cumulative hours worked in order to determine whether continuing FMLA leave is legally required.