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Must an Employer Grant Permanent Intermittent FMLA Leave?

Maybe not, according to a recent decision from the Eighth U.S. Circuit Court of Appeals. The case has many people wondering if reevaluation of the word “leave” in the Family and Medical Leave Act (FMLA) may be on the  horizon.

FMLA Complete Compliance

Perception may be reality . . .
In February 2007, Charlene Wisbey applied for FMLA leave from her job as a dispatcher for the city of Lincoln, Nebraska. Her leave application stated that her depression and anxiety made her unable to perform the essential functions of her job.

She also submitted a note from Dr. Pothuloori stating that she “suffer[ed] from recurring cycle depression, anxiety [that] interferes with her sleep, energy level, motivation, [and] concentration.” The doctor further indicated that while Wisbey could perform the essential functions of her job, she would need intermittent time off for the “next 6 months or longer.” Pothuloori left blank the space labeled “anticipated return to work date” on the certification form.

The city had questions about Wisbey’s ability to perform her job, so it scheduled a fitness-for-duty exam with Dr. Eli Chesen, a psychiatrist. After examining her, Chesen reported that she suffered from “chronic relapsing depression (unipolar depression) which intermittently interferes with her ability to function at full capacity.” He added that she was not “fit for duty as described in her job description, especially as related to tiredness, her ability to concentrate and her ongoing propensity to likely miss work.” The city placed Wisbey on administrative leave with pay.

Wisbey argued that being tired wasn’t an issue because she could stay home on those days. Nevertheless, the city fired her. After her termination, she filed suit under the Americans with Disabilities Act (ADA), claiming that the city perceived her as disabled despite her continuing ability to perform her job

She also claimed retaliation and interference with her FMLA rights since she was terminated instead of being granted leave. The trial court dismissed her lawsuit, and she appealed to the Eighth Circuit.

HR Q&A Book: Family & Medical Leave Act

. . . but reality is more real than that
The appeals court promptly dismissed Wisbey’s “perceived disability” claim, which required a showing that the city mistakenly believed she had an impairment that substantially limited her ability to work. Since Chesen reported that she wasn’t fit for duty and Wisbey verified that she stayed home when her medical condition made her too tired to work, the court ruled that the city was correct in finding that she had an impairment that limited her ability to work.

Wisbey next claimed that the fitness-for-duty exam was impermissible under the ADA, and therefore, Chesen’s medical opinion couldn’t be used as a basis for terminating her employment. Under the ADA, medical exams are prohibited unless the employer can show they are job-related and consistent with business necessity. That occurs when the employer can identify legitimate and lawful reasons to doubt the employee’s capacity to perform her job duties.

In this case, the fitness-for-duty exam was necessary because Wisbey’s job required her to deal with emergencies and be present and alert to handle incoming calls for help. Her admission — and Pothuloori’s confirmation — that she suffered from conditions affecting her concentration and motivation created a legitimate concern by the city about whether she could effectively perform her duties as a dispatcher. Thus, the appeals court approved the city’s use of a medical exam to resolve that question.

Interference isn’t wrong if there is no right
Wisbey’s FMLA interference claim also focused on the fitness-for-duty exam, which she contended was improper since the city had already accepted Pothuloori’s certification of her serious medical condition. Moreover, the court questioned whether an employer can be found to have wrongfully interfered with a right to FMLA leave if no such right exists.

According to the court, when an employee needs to be on intermittent leave for “six months or longer . . . the FMLA does not provide leave for leave’s sake, but instead provides leave with an expectation [the] employee will return to work after the leave ends.” The court concluded:

The FMLA does not provide an employee suffering from depression with a right to unscheduled and unpredictable, but cumulatively substantial, absences or a right to take unscheduled leave at a moment’s notice for the rest of her career. On the contrary, such a situation implies that she is not qualified for a position where reliable attendance is a bona fide requirement.

The court concluded that Wisbey’s request for intermittent leave for six months or longer — with no indication of when or if the need for leave would end — was beyond the requirements of the FMLA. Since she didn’t have a right to take leave under those circumstances, the city couldn’t have unlawfully interfered with any such right.

Wisbey’s final claim — retaliation for seeking FMLA leave — was quickly dispatched since there was no causal connection between her application for FMLA leave and her termination. Instead, the city fired her based on the results of the fitness-for-duty exam, which was an independent and legitimate factor for making the termination decision. Charlene K. Wisbey v. City of Lincoln, Nebraska, No. 09-2100 (8th Cir. Ct. of Appeals, July 6, 2010).

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including FMLA

What just happened?
Since the FMLA was enacted, employers have wondered if there is anything they can do about an employee who might need to miss up to 12 weeks intermittently. The language of the Act seems to indicate that as long as the medical basis for leave is properly certified and the employee meets all the eligibility conditions, the employer has no choice but to continually grant leave until a new 12-month FMLA calculation period starts. In short, those circumstances appear to create a right to a permanent part-time job for a job requiring full-time status.

Perhaps the pendulum is swinging back. The language of this decision regarding employees being unqualified for their job seems to weigh the employer’s rights under the ADA against the employee’s entitlement under the FMLA. And guess what — the employer’s rights appear to take precedence.

We need to wait a bit to see if the courts will advance that line of reasoning. However, this may be one of the first real causes for optimism that employers may be able to deal more effectively with seemingly limitless intermittent leaves.