HR Management & Compliance

Ask the Expert: ‘Excessive’ Intermittent Leave Impacts Employee’s Performance

We have a team member who is currently on an intermittent leave certified at up to 12 days per month. Her scheduled hours are Monday through Friday, 8 hours per day. She misses her maximum amount of days every month. Is there some sort of threshold that we can refer to when it comes to intermittent leave? As she’s taking 12 days each month, she’s only required to be here about 60% of the time. She has not met any of her goals and has not been performing the essential duties of her job even when she is at work.

intermittent leave

When leave is taken on an intermittent or reduced work schedule basis, it is important to determine the number of days of leave an employee may take. An employee who has a 5-day workweek, such as the one you’re talking about, is entitled to 60 days’ leave in a 12-month period (5 days multiplied by 12 weeks) under FMLA.

Sixty days’ leave over a 12-month period would work out, on average, to only 5 days per month rather than the 12 days per month your team member is currently taking. It seems that she will exhaust her bank of FMLA days rather quickly at this rate, depending on how long this arrangement has already been in progress.

If she is close to exhausting her FMLA allotment and returning to a regular full-time schedule, you may wish to wait until then before taking any kind of disciplinary action (if warranted) against her. In general, the more temporal distance between the protected activity and the discipline, the less likely it is that the discipline appears to be taken in retaliation for the protected activity.

Note that the federal ADA and your state’s disability law may come into play as well, if the nature of the worker’s injury or illness qualifies as a “disability” under either or both of these laws. In this case, ongoing reduced-schedule leave may be considered a reasonable accommodation, even after the FMLA allotment has been exhausted.

As you have figured out, the question of an employee’s job performance while on reduced-schedule leave can get tricky. Employers must be careful to avoid the appearance of retaliation or discrimination on the basis of an employee’s taking protected leave. It is also not reasonable to expect the same level of performance from any employee working only 60% of the time (for whatever reason) as another, comparable employee working 100% of the time.

Given the various risk factors at play here, and the fact-specific nature of your situation, we would urge you to consult with qualified local counsel before taking any disciplinary action against this employee.

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