Employers don't get to choose whether FMLA leave is continuous or intermittent, court says
- An employer violated the Family and Medical Leave Act (FMLA) when it denied an employee's request for intermittent leave and instead placed him on continuous leave, a federal district court said, denying the employer's motion for summary judgment (Brown v. Gestamp of Alabama LLC, Nos. 2:16:cv-1862, 2:17-cv-1411 (N.D. Ala., July 18, 2018)).
- George Brown, an individual with gout, arthritis and hypertension, occasionally missed work because of flare ups associated with his conditions. And although Gestamp of Alabama, his former employer, had granted him intermittent FMLA leave in 2014 and 2015, it denied his FMLA recertification for intermittent leave in 2016 and, instead, placed him on continuous leave. He sued, alleging, among other things, that the employer interfered with his FMLA rights.
- The employer moved for summary judgment and while the court dismissed some of Brown's claims, it allowed his interference claim to proceed, saying that when Gestamp placed him on continuous leave, it denied his request for intermittent leave. "Once Mr. Brown notified Gestamp that his medical condition required a flexible work schedule via intermittent leave, the FMLA obliged Gestamp to grant Mr. Brown's request," the court said. "Gestamp’s failure to provide Mr. Brown that intermittent leave violated the FMLA."
Employers find managing intermittent FMLA more difficult than managing any other federally mandated accommodation, according to a 2017 Littler Mendelson survey. When workers use their FMLA leave on an infrequent basis, employers have to move quickly in keeping track of scheduling and coverage issues.
Also, the unpredictable nature of intermittent FMLA leave can complicate call-in procedures. Employers usually can enforce usual and customary call-in procedures but if the leave is not foreseeable, employees only need to inform the employer as soon as practicable for that particular instance, according to the U.S. Department of Labor’s FMLA regulations. If an individual has multiple intermittent leave types, such as one for care of a parent, child or self, employers can require that the employee specify which approved leave applies to the absence.
Educating managers about intermittent leave is key in preventing lawsuits and compliance headaches. After all, inadequate knowledge of intermittent leave under federal law is often cited as one of the top ways in which managers can cause FMLA violations.
- U.S. District Court for the Northern District of Alabama Brown v. Gestamp of Alabama LLC
- Electric Code of Federal Regulations PART 825—THE FAMILY AND MEDICAL LEAVE ACT OF 1993
- HR Dive How managers cause FMLA lawsuits — and 10 ways to get them to stop