FMLA Eligibility for Intermittent Leave is Recalculated at the Commencement of the First Absence in a Designated 12-Month Period

The purpose of the FMLA is to balance the demands of the workplace with the needs of the family.  Absences under that act provide reasonable leave for medical-related reasons, while accommodating the legitimate business interests of the employer.  Under the FMLA, an employee’s eligibility for the allowable leave is based, in part, upon having worked a minimum of 1250 hours during the 12-month period immediately prior to the leave request. 

In an administratively complicated case, the 6th U.S. Circuit Court of Appeals recently addressed a situation in which an employee was granted intermittent leave under the FMLA for episodes of depression.   In that case, the court determined that the employee was eligible for leave during the initial days of her absence, but ineligible for the days that extended into the following year, since eligibility for intermittent leave was calculated by the company on a calendar year basis, and the employee had not hit the 1250 hour threshold during the year of her initial absence.  Davis v. Michigan Bell Telephone Co., No. 07-1512 (6th Cir. Sept. 29, 2008).

Candace Davis worked as a customer service representative for Michigan Bell Telephone Company.  On a number of occasions in 2004, Davis requested FMLA leave for depression, but was not eligible for that leave because she had not worked for 1250 hours during the 12 months immediately prior to the request.  On September 24, 2004, she reached that milestone, and became eligible for leave.  Davis’ healthcare provider informed the company that Davis would require intermittent leave for her depression.  Such leave was granted, and Davis was absent on a number of occasions during the remainder of 2004.  

On December 13, 2004, Davis began an absence that was to have ended on December 27.  Davis did not return to work after the first of the year, but her therapist informed the company that Davis had recovered enough to have returned to work on January 3.  As a result, the company informed Davis that every absence after January 2 would be considered an unexcused absence unless Davis sought and received FMLA leave for those absences.  Davis further was notified that if she failed to return to work on January 14, she would be considered to have resigned.

Davis did not return on January 14, but instead reported to work on January 15.  At that time, she was suspended pending her dismissal.  Davis requested a review of the pending dismissal, and specifically requested that her unexcused absence be approved as FMLA leave.  In response, the company determined that Davis was not eligible for FMLA leave in 2005, as she had not worked for 1250 hours in the previous 12 months.  Because the company calculated FMLA eligibility for intermittent leave on a calendar basis, it determined that Davis’ eligibility should be recalculated as of the first unexcused absence in 2005, which occurred on January 3.

Davis filed a lawsuit claiming that the company had interfered with her FMLA rights, and had retaliated against her for exercising them.  She claimed that her absences in January were simply part of her intermittent leave that began in December, and which had been previously approved.  The company argued that FMLA eligibility for intermittent leave cannot be “carried over” from one 12-month period to the next.  The district court agreed, and concluded that the company could not have interfered with Davis’ FMLA rights, because Davis had not worked enough hours in the preceding 12 months (calculated back from her January 3 absence) to be eligible for FMLA benefits.  The court further found that Davis’ ineligibility precluded her retaliation claim, as well.  The lower court’s decision was upheld on appeal.

From this sea of administrative confusion, one statement provides a lifeline:  “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, and it extends to cover every other absence caused by that condition during the same twelve-month FMLA period” – which, for this company, was the calendar year.  Once a new 12-month period begins, any additional absences – even though caused by the same serious health condition – constitute a new period of FMLA leave.  Otherwise, there would be no clear point at which a period of intermittent leave ends and a new leave begins, and an employee would never have to re-establish eligibility for leave.  Employers should ensure that employees are clearly informed of the basis of calculation for intermittent leave eligibility (i.e.¸ the calendar year basis) by clearly stating that fact in a written document disseminated to employees.