Employer's Bane: Unpredictable FMLA leave. Is there a solution?

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 on!"

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 solution?

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 job?"

"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 not."

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. Welcome aboard!"

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 and Mondays."

"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 it."

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.

A 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 time.)

"Build a bridge and get over it, honey!"

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 intermittent absences.

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 previous bullet).

*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.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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