Many employers have been pulling their hair out attempting to address runaway intermittent leave under the FMLA. The Sixth Circuit’s decision in Davis v. Michigan Bell authorizes one creative solution – change your 12-month FMLA period to a calendar-year basis.

On September 24, 2004, – the first day she became eligible for FMLA leave after having worked for her employer since 1997 – Candice Davis was granted FMLA intermittent leave for chronic depression certified by her health care provider. Between September 24 and December 13, 2004, she took several discrete absences from work due to her depression and each absence was approved for FMLA. Beginning on December 13th, she began a more extended leave due to her depression but, despite her employer’s efforts, did not return her FMLA medical certification form for this period. Her employer did, however, initiate a short-term disability leave for her in accordance with the company’s benefits package. On January 7, 2005, Ms. Davis’s therapist informed her employer that she was no longer disabled and could have returned to work as early as January 3rd. As a result, Ms. Davis’s employer informed her that every absence after January 2nd would be considered an unexcused absence unless she sought and received FMLA leave to cover those days off. It also told her that she would be considered to have resigned if she did not report to work on January 14th. When January 14th passed without a return to work, she was suspended pending her dismissal.

In protesting her dismissal, Ms. Davis requested that her unexcused absences be approved for FMLA leave. Her employer, however, concluded that Ms. Davis really was not eligible for FMLA leave in 2005. Here’s what happened: Michigan Bell measured its 12-month period under the FMLA on a calendar-year basis. As a result, the company measured Ms. Davis’s entitlement to FMLA for calendar year 2005 on the first date of her proposed FMLA leave for 2005. Lo and behold, when the company looked back from that date over the previous year, it concluded that Ms. Davis had not worked the requisite 1,250 hours. Therefore, she was terminated.

Ms. Davis sued Michigan Bell claiming primarily that it had interfered with her FMLA rights by denying her FMLA benefits. In analyzing whether Ms. Davis was entitled to FMLA leave in 2005, the Sixth Circuit noted that the determination of FMLA eligibility "must be made as of the date leave commences" under 29 C.F.R. §825.110(d). If that date was measured as of September 24, 2004, then Ms. Davis was eligible for additional leave. If, however, the date is more properly measured in January 2005 when Ms. Davis sought additional leave for her chronic condition, then she was not eligible.

In concluding that Ms. Davis’s eligibility was properly re-evaluated by Michigan Bell at the beginning of calendar year 2005, the court noted 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 the condition and it extends to cover every other absence caused by that condition during the same twelve-month FMLA period. Once a new 12-month FMLA period begins, however, any additional absences caused by that same chronic condition would constitute a new period of intermittent FMLA leave. Therefore, in other words, absences caused by the same chronic condition but occurring in different 12-month FMLA periods, constitute different periods of FMLA leave.

In Davis, Michigan Bell may have benefited from a perfect storm of events that permitted it to raise the eligibility issue. Indeed, the facts suggest that the eligibility argument was an afterthought once the employer realized that Ms. Davis had not actually worked the requisite 1,250 hours in the previous year.

In my experience, most employers have selected a rolling 12-month FMLA period to prevent abuse that could result from an employee stack one twelve-week FMLA leave at the beginning of one year upon the 12-week leave period at the end of that year. Nevertheless, those employers that have more concerns about rampant intermittent leave abuse may want to consider whether to go through the steps necessary under the FMLA to change to a calendar-year model.