I know last week I said we’d talk about temporary employees and FMLA–but I remembered afterward that I already blogged about that here. So let’s face down that intimidating
monster challenge known as intermittent FMLA. In order to do that, we are going to return once more to Splendiferous Supermarket Inc and Betty the Boss to see how they might handle an intermittent FMLA situation–after the jump, of course…
Now, you may remember from last week that Crafty Caroline was taking intermittent FMLA (click here for review), but we really couldn’t get to that issue, because it seems Caroline was abusing her FMLA leave. This week, we meet Carl the cashier (“Carl”). Carl unfortunately was diagnosed two months ago with cancer (since the type of cancer isn’t really relevant to this discussion, we’ll allow him that measure of privacy). Carl had just over 4 weeks’ FMLA leave to recover from surgery, and he will now be receiving chemotherapy. He was told he will need 1-2 days every 6 weeks for the treatments themselves, and he may need either an additional day or two, or even to alter his work hours to deal with the nasty side-effects. Carl is still entitled to about 8 weeks’ FMLA time, give or take, and wishes to have whatever time he needs off due to chemotherapy and side-effects counted against his remaining FMLA time. This is a prime example of what is known as intermittent FMLA leave–and, even in the most compelling cases, and with employers who have the best of intentions, it can feel like a big administrative headache. Carl’s manager, Sally Supervisor, and Harry the Human Resources Director meet with Betty the Boss to discuss exactly how to handle this request. Let’s look at some of the issues raised by Carl’s situation with some questions and answers:
Can an employee take continuous and then intermittent FMLA for the same condition? Yes, particularly if the health care provider’s certification indicates that both types of leave are or may be required, then this is permissible under the FMLA. Suppose, in our hypothetical case, Carl’s doctor did not indicate a need for additional intermittent leave beyond the initial four weeks. What should Splendiferous do? The most appropriate step would be for Splendiferous to require an additional certification from Carl’s doctor relating to the additional, intermittent leave.
If Carl has 8 weeks of leave time left and uses it intermittently, he might not exhaust it all within 12 months. At what point if any, can Splendiferous require Carl to re-request FMLA leave? Generally, establishment of Carl’s eligibility is applied at the time of his first application for FMLA leave. At that time, Splendiferous would presumably have established that Carl had worked at least 1250 hours within the preceding 12 months. If Carl is dealing with the same health condition within that 12-month period following the start of his first, continuous leave, Splendiferous cannot make Carl re-request FMLA leave time during that 12-month period–even though later on in that 12-month period, Carl might not meet the 1250-hour requirement. However, some courts have held that after the expiration of that initial 12-month period, Splendiferous could require a new request, with a determination of Carl’s eligibility for FMLA at that time.
Would Carl have had to be physically at work for at least 1250 hours in the months preceding the start of his leave? With employees who regularly or even occasionally are allowed to work remotely, all hours that they actually work, even if completed from home or some other location count as hours worked, and help satisfy the 1250-hour minimum requirement. In Carl’s case, however, it is unlikely that he, as a cashier, would be able to work remotely, and so he would have to actually have been present at the store to have worked. In addition, paid or unpaid leave of any type, such as vacation, sick leave, jury service, etc. are not counted as hours worked.
What if, Carl has had 6 chemotherapy treatments, taken intermittent leave related to those treatments, and then, unfortunately gets pneumonia, and requests FMLA leave time for that? Assuming he is still within the 12 months of his first FMLA leave request, can Splendiferous count back 12 months from this new request to see if Carl has worked the requisite 1250 hours to be eligible for FMLA leave? Maybe. It depends on whether the pneumonia is related to his cancer or cancer treatments. If the pneumonia is unrelated, and if in the immediately preceding 12 months Carl does not have the requisite 1250 hours Splendiferous might be within its rights to deny Carl FMLA leave for the pneumonia. Splendiferous should then consult with competent employment counsel to see if Carl might be entitled to leave as a reasonable accommodation under the ADAAA though. Also, if the pneumonia arose because Carl’s immune system was compromised as a result of his chemotherapy, Carl might have a valid argument that the pneumonia is related to the cancer and Splendiferous may not be entitled to look back at the immediately preceding 12 months and deny Carl’s request if he has not worked at least 1250 hours.
These are just some intermittent FMLA issues that Splendiferous and all employers will face. There are a number of others, and so, I will devote one more post next week to touch on some other intermittent FMLA issues. That means that we will return once more to Splendiferous Supermarket, Carl the Cashier, and, of course, Betty the Boss, since they have been kind enough to let me use them as an illustrative tool in our understanding intermittent FMLA. See you next week!
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent employment counsel on any issues discussed here.
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