The Sixth Circuit Court of Appeals recently provided helpful guidance to employers in assessing an employee's eligibility for Family and Medical Leave Act ("FMLA") intermittent leave. In Davis v. Michigan Bell Tel. Co., 2008 U.S. App. LEXIS 20438 (6th Cir. September 29, 2008), the Sixth Circuit explained that in assessing FMLA eligibility: (1) FMLA leave commences upon the first absence caused by the condition, (2) employers can reassess FMLA eligibility when a new twelve-month period begins, and (3) FMLA eligibility requires the employee to have worked 1,250 hours in the twelve-month period immediately prior to the requested leave.
The Davis Decision
In Davis, an employee sued Michigan Bell for interfering with her FMLA rights. Employed as a customer service representative, Ms. Davis was diagnosed with depression in 1999. Subsequent to her diagnosis, she applied for FMLA leave several times, but was denied because she failed to work 1,250 hours in the preceding year as required for FMLA eligibility. In September 2004, Ms. Davis was absent from work due to depression and went on to file for FMLA intermittent leave. This time she met FMLA eligibility requirements and was granted intermittent leave. Michigan Bell measured its twelve-month eligibility period on a calendar year model starting on January 1st and ending on December 31st of each year. On December 13, 2004, Ms. Davis began an absence that carried over into 2005. On January 7, 2005, the employer was informed by Ms. Davis' therapist that she was able to return to work on January 3, 2005. Upon learning this, Michigan Bell notified Ms. Davis that only absences between December 13, 2004 and January 2, 2005 would be FMLA approved. Any absence after January 2, 2005 would be considered an unexcused absence. Ms. Davis failed to report to work until January 15, 2005 and was terminated for excessive unexcused absences.
The Sixth Circuit explained the following regarding FMLA intermittent leave eligibility:
- FMLA Leave Commences upon the First Absence Caused by the Condition, Not when Requested
According to the Sixth Circuit, "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 the condition." The Court made it clear that employees may be covered by FMLA after their condition causes them to be absent. Moreover, once the employee meets FMLA eligibility and requests FMLA leave, that leave is retroactively applied to previous absences caused by the same serious health condition that occurred within the same twelve-month FMLA period.
- FMLA Eligibility is Reassessed when a New Twelve-Month Period Begins
The Court of Appeals clarified that employers can require their employees to reapply for FMLA eligibility when the twelve-month period ends. "Once a new twelve-month FMLA period begins, any additional absences caused by that same chronic condition would constitute a new period of intermittent FMLA leave." Therefore, Ms. Davis' absence that spilt over into 2005 would be covered by FMLA only if she had been eligible for FMLA in 2005, despite the fact that it was a single period of absence continued from the previous year. The Court reasoned that the alternative would be that "employees would never have to reestablish their eligibility for FMLA leave and would therefore be perpetually entitled to twelve weeks of FMLA leave per year based on a single eligibility determination." The Court stated that FMLA was not intended to "unduly infringe on employers' needs to operate their businesses efficiently and profitably."
- FMLA Eligibility Requires the Employee to have Worked 1,250 Hours in the Twelve-Month Period Immediately Prior to the Requested Leave
The Sixth Circuit noted that an eligible employee under FMLA is "one who has been employed for at least twelve months by the employer with respect to whom leave is requested, and who has been employed by that employer for at least 1,250 hours of service during the twelve-month period immediately preceding the commencement of the leave." The Court further clarified that the employee must have actually worked 1,250 hours, excluding FMLA and unexcused absences, in the previous year in order to meet the eligibility requirement.
Practical Implications for Employers
Many employers have struggled to address "runaway" FMLA intermittent leave. The Sixth Circuit presents a slim, but effective tool to manage some instances of this problem. The Davis decision clarifies that employees seeking intermittent FMLA leave that continues from the end of one 12-month FMLA period and into another must be eligible for such intermittent leave at the start of the new 12-month FMLA period. Employers should carefully evaluate employee eligibility in any such circumstance involving intermittent FMLA leave.
Even if an employee has not worked the requisite hours to be eligible for intermittent leave at the start of the new 12-month FMLA period, employers still should consider their other obligations, such as engaging in the interactive accommodation process under the Americans with Disabilities Act and avoiding wrongful discharge claims asserted by employees with workers compensable injuries.