Home > Legal Updates >

Intermittent FMLA Leave Terminates When New 12-Month FMLA Period Begins

Employers can breathe easier when calculating intermittent Family and Medical Leave Act (“FMLA”) leave under a recent case decided by the U.S. Sixth Circuit Court of Appeals. In Candice Davis v. Michigan Bell Telephone Company, No. 07-1512 (6th Cir. 2008), thecourt found that a request for intermittent FMLA leave terminates when a new 12-month FMLA period begins. Thus, intermittent FMLA leave cannot carry over into a new 12-month FMLA period, it held. The Sixth Circuit has jurisdiction over Kentucky, Michigan, Ohio and Tennessee.

Beginning in September 2004, Candice Davis, a customer service representative, requested intermittent FMLA leave from her employer for depression. The company permitted Ms. Davis to take intermittent FMLA leave for her depression between September 24 and December 13, 2004. Thereafter, Ms. Davis began an absence that continued into mid-January 2005.

On January 7, 2005, Ms. Davis’s healthcare provider informed the company that she no longer suffered from a serious health condition and could have returned to work on January 3, 2005. Accordingly, the employer notified Ms. Davis that every absence after January 2, 2005, was to be considered unexcused unless she sought and received FMLA leave for those absences. The employer also told Ms. Davis that she was expected to report to work on January 14, 2005, or she would be considered to have resigned. Ms. Davis failed to report to work on that day.

When Ms. Davis appeared at the employer’s office for work on January 15, 2005, she was dismissed in accordance with the employer’s attendance policy. Thereafter, the company also determined that under its calendar-year model for calculating FMLA leave, because Ms. Davis had not worked the requisite 1,250 hours in 2004, she was no longer eligible to receive FMLA leave in 2005. (An employee must have provided his or her employer at least 1,250 hours of service in the immediately preceding 12-month period to be eligible for FMLA leave.)

Ms. Davis sued her employer for interference with her FMLA rights and retaliation in violation of the FMLA. The district court granted summary judgment in favor of the employer on all claims and the appellate court affirmed.

The Sixth Circuit held that a period of intermittent FMLA leave terminates when a new 12-month FMLA period begins. The court reasoned that when an employee has a chronic health condition for which intermittent FMLA leave has been approved, the leave commences upon the occurrence of the first absence caused by that condition. However, the leave extends only to cover every other absence related to that condition during the same 12-month FMLA period. The court ruled that intermittent leave cannot carry over into the next 12-month FMLA period and that eligibility for FMLA leave must be reevaluated in the new 12-month FMLA period. Therefore, any additional absences caused by the same chronic condition would constitute a new period of intermittent FMLA leave. To hold otherwise, the court found, would provide no point at which the initial period of intermittent FMLA leave ends and a new period commences (i.e., an employee could be perpetually entitled to 12 weeks of FMLA leave per year based on a single eligibility determination).

This case now offers employers some needed guidance for processing intermittent FMLA leave requests — absences caused by the same chronic condition but occurring in different 12-month FMLA periods constitute different periods of FMLA leave. Employers should reevaluate employee eligibility for FMLA leave — intermittent or otherwise — at the commencement of each 12-month period. Nonetheless, given the complexities involved in FMLA and disability leave management, employers would be well-served to address specific scenarios with their counsel.