Get Out of Work Free Card or Limited Remedy For Serious Health Conditions?

Your employee comes to you with a request for intermittent leave and a note from his doctor excusing him from work every time he experiences an acute panic attack. Unfortunately, he reports these panic attacks whenever he has a major presentation or important client meeting, and usually on the day of the presentation. Client meetings are cancelled at the last minute and important work is delegated to other co-workers at the expense of their own work.

You know your employee has a serious health condition and qualifies for intermittent leave under the FMLA, but the timing of the requests is causing significant disruption to your business. Are there limits to how and when he can take such intermittent leave? You also know your employee will never exhaust his full 12 weeks of FMLA leave under his intermittent leave, so are you required to provide on-going intermittent leave with no advanced notice to the detriment of your clients and business? Can you require reasonable production requirements so that the employee’s last minute leave does not require other coworkers to do his job for him?

The right to take intermittent leave under the FMLA is not absolute. Like the ADA, the FMLA does require some level of communication or interactive process to ensure that leave is provided at minimal disruption to the employer and its business. Although intermittent leave is required when it is “medically necessary” due to the employee’s sudden incapacity, 29 CFR section 2612(b)(1) provides that the employer is allowed to take reasonable steps to avoid undue disruption in the workplace. For example, any employee who needs to take intermittent leave for planned medical treatment “must make a reasonable effort to schedule the treatment so as not to disrupt unduly the employer’s operations,” 29 CFR section 825.203.  As the Court observed in Kaylor v. Fannin Regional Hospital, Inc., 946 F.Supp. 988, 998 (N.D. Ga. 1996),

“The right to intermittent leave under the FMLA is not absolute. Instead it is subject to certain restrictions to prevent employee abuse. An employee is entitled to intermittent leave only if (1) the treatment was medically necessary, (2) he or she attempted to schedule the appointment to avoid unduly disrupting the employer, and (3) he or she gave the employer at least 30 days notice or … as soon as practicable.

Another court explained that,

“… the FMLA envisions a cooperative effort between the employer and employee to ensure that the employee gets leave necessary for medial (sic) treatment while not unduly disrupting the employer’s operations… To that end, every employee must avoid imposing upon the employer whenever possible. . . .”

Palazzolo v. Galen Hospitals of Texas, Inc., No. Civ. A 1:96CV2550TWT, 1997 WL 837951 (N.D. Ga., Nov. 25, 1997).

So what to do with the employee who requires sudden intermittent leave due to a legitimate serious medical condition that flares up without warning? To avoid undue disruption to the business, employers may require that critical presentations be prepared two or three days before the deadline so as to avoid last minute cancellation or reassignment. Similarly, employers may require that if the employee is out for brief intermittent leave due to such medical flare ups, they nonetheless are expected to perform their job duties within a reasonable period of time and cannot rely on others to complete their work for them.

The FMLA is not intended to “unduly disrupt” the employer’s operations or allow for chronic leave abuse by the employee. Imposing reasonable work requirements to ensure that major projects or presentations are completed days in advance of the external deadline and that the employee performs his job within a reasonable period or time are permissible under the FMLA and do not impede the employee’s right to intermittent leave.