Leave Management, Policy, and Compliance

FMLA Training Scenario: Reduced Schedule Leave Request Vexes Employer

Here we present a leave-related workplace scenario—inspired by an actual court case—that’s intended to help HR professionals better understand an employer’s responsibilities under the Family and Medical Leave Act (FMLA).  This scenario involves an employee who can no longer work overtime due to a medical condition—but the employer says that working overtime is an essential function of his job.

reduced schedule leaveThe Facts

Santiago is a material storage supervisor for the state Department of Transportation (DOT). During the winter season, his position requires significant, mandatory overtime. Santiago suffers from “cluster headaches,” which are more intense than a migraine attack and last from several hours to several days.

Despite years of treatment, Santiago is not able to control the headaches with medication. His doctor believes that his headaches are triggered by Santiago’s work schedule when he is required to work more than 8 hours a day and more than 40 hours a week. As a result, his doctor advises Santiago that he must limit his work schedule and not work any overtime for the remainder of his working years.

Santiago tells his employer that, on his doctor’s advice, he wishes to take reduced schedule FMLA leave every winter in order to stop working overtime and avoid triggering his cluster headaches. The DOT tells Santiago that working overtime is an essential function of his job and, pursuant to a collective bargaining agreement, attempts to transfer Santiago to another position. The DOT also advises Santiago that he must submit FMLA medical certification to take FMLA leave.

Santiago submits medical certification stating that he cannot work overtime, the DOT is unable to locate an alternate position for him, and the DOT informs Santiago he must resign or seek disability retirement. Santiago resigns and sues, claiming that his FMLA rights were violated.

The Law

This hypothetical is based on the case of Santiago v. Connecticut Dept. of Transportation, 50 F. Supp. 3d 136 (D. Conn. 2014).

Questions

1. What are the requirements for certification of the need for reduced schedule leave? Can Santiago ask for leave to avoid cluster headaches? How about leave to avoid overtime every winter with no limit on duration?

A reduced leave schedule is a leave schedule that reduces an employee’s usual number of working hours per workweek, or hours per workday, as opposed to intermittent leave, which is taken in  separate blocks of time due to a single qualifying reason.

The FMLA does not require a complete inability to work full time, but rather permits leave to be taken intermittently or on a reduced leave schedule when medically necessary.

As with intermittent leave requests, if an employee requests leave on a reduced schedule basis, the certification must contain information sufficient to establish:

  • The medical necessity for reduced schedule leave, and
  • An estimate of the frequency and duration of the episodes of incapacity.

Avoiding the headaches. According to the court’s decision in this case, Santiago is not limited to leave time during the period when he was actually incapacitated by headaches. Instead, the FMLA regulations allow that “absences attributable to incapacity [for chronic conditions] qualify for FMLA leave even though the employee . . . does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive, full calendar days.” Citing FMLA regulations at 29 CFR Sec. 825.115(f)).

According to the court, the examples in the FMLA regulations specifically provide that an employee can take leave to avoid the onset of illness, noting that “an employee with asthma may be unable to report for work . . . because the employee’s health care provider has advised the employee to stay home when the pollen count exceeds a certain level.”

No limit on duration. In Santiago’s case, he is seeking reduced schedule leave at the DOT so that overtime can be avoided for the remainder of his employment. Since overtime for his position is only scheduled in the winter, it would be possible for him to spread his annual 12-week entitlement of reduced schedule FMLA leave over the winter months without exhausting his annual allotment of FMLA leave—ever.

Unfortunately for the DOT, the leave provisions for FMLA apply even if an employee cannot perform essential functions of the job (i.e., overtime) and there is no undue hardship exception for FMLA leave. In fact, the court in the Santiago case pointed to a 2006 report on the FMLA written by the DOL, which discussed concerns raised by a number of employers that compliance with the FMLA’s intermittent leave provisions when taken for a chronic condition often converted a full-time position into a permanent, part-time position.

According to the court in the Santiago case, the DOL has taken the position that an employee is entitled to reduced  schedule leave under the FMLA even if the condition is permanent and it is unlikely that the employee will ever be able to return to full-time employment.

Note, however, that the DOL’s report actually states that FMLA is available to an employee even though the employee’s condition is permanent and the employee “will more than likely not be able to return to full employment in the near future.” So, there may be hope for employers in other jurisdictions that wish to make this argument. (Emphasis added)

Although Santiago’s right to reduced schedule leave may not be impacted by his inability to perform essential functions, his right to reinstatement after a period of leave could arguably be impacted. See Silva v. City of Hidalgo, 575 Fed. Appx. 419 (5th Cir. 2014), stating:

Under 29 C.F.R. § 825.216(c), if the employee is unable to perform an essential function of the position because of a physical or mental condition, including a continuation of a serious health condition, the employee has no right to restoration to another position under the FMLA. If the employee fails to return to work on or before the date that FMLA leave expires, the right to reinstatement also expires.

DOL Report: Family and Medical Leave Act Regulations: A Report on the Department of Labor’s Request for Information  at 44; Opinion Letter Family & Med. Leave Act (FMLA), FMLA-97, 1998 DOL FMLA LEXIS 13, 1998 WL 1146648, at *2 (July 10, 1998) (“The fact that [a health] condition is permanent and the employee will more than likely not be able to return to full employment in the near future would not diminish the employee’s entitlement to FMLA leave, assuming the employee has met all of the employee eligibility tests under the Act.”).

2. Should the DOT ask him to update/recertify his certification? When and how often?

First, in this case, the employer should have pursued a second opinion in an effort to get a more defined certification of the duration of leave or to get a different diagnosis. However, the DOT did not do this.

Generally, an employer may request recertification of an employee’s serious health condition no more often than every 30 days, unless one of the specific exceptions discussed below applies. If, as in the case of Santiago’s certification, the medical condition is a chronic or long-term condition certified to last more than 30 days, the employer must wait for the minimum duration of the condition (appearing in the certification) to expire before requesting a recertification.

In Santiago’s case, the certification period was indefinite. The FMLA regulations provide that if the certification indicates that employee needs leave for that condition beyond a single leave year (e.g., intermittent or reduced schedule leave), a new certification can be required annually.

So, the DOT can request recertification of Santiago’s condition annually, unless one of the following specific exceptions applies:

  1. The employee requests an extension of leave;
  2. Circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications); or
  3. The employer receives information that casts doubt on the employee’s stated reason for the absence or the continuing validity of the certification.

FMLA regulation: 29 CFR Sec. 825.308

3. How should the DOT track Santiago’s reduced schedule leave?

If an employee would normally be required to work overtime, but is unable to do so because of an FMLA-qualifying reason that limits his or her ability to work overtime, the hours which the employee would have been required to work may be counted against the employee’s FMLA entitlement.

So for example, if Santiago would normally be required to work for 48 hours in a particular week, but in order to prevent cluster headaches, he is unable to work more than 40 hours that week, Santiago would utilize eight hours of FMLA-protected reduced schedule leave out of the 48-hour workweek (8⁄48 = 1⁄6 workweek).

Note: Voluntary overtime hours that an employee does not work due to a serious health condition may not be counted against the employee’s FMLA leave entitlement.

FMLA regulation: 29 CFR Sec. 825.205(c)