HR Management & Compliance

The FMLA and Intermittent Leave: Proceed with Caution

A federal judge in Shreveport, Louisiana recently allowed a former employee’s Family and Medical Leave Act (FMLA) lawsuit alleging interference and retaliation to proceed to trial after he was terminated for an alleged attendance policy violation during his previously approved intermittent leave.


courtneyk / iStock / Getty Images Plus

Although the FMLA allows you to require employees to adhere to your usual and customary procedures for requesting and taking leave, the court determined the employee in this case had done enough to notify his employer of his absence. Therefore, it ruled he was entitled to have his case heard by a jury.

Legal Issue and Court’s Decision

According to the former employee’s lawsuit, he was employed for 21 years when he requested intermittent FMLA leave so he could take his wife, who had suffered a stroke, to physical therapy as needed. His intermittent FMLA leave schedule was approved for September 4, 2015, through October 23, 2015. However, 4 days into his intermittent leave, he was terminated for being “absent without notice.”

The employee filed suit, alleging his employer interfered with his previously approved FMLA leave and discharged him in retaliation for exercising his right to leave. In support of his lawsuit, he attested that he had complied with all obligations under the Act, as well as his employer’s policies.

The employer argued that even though the employee’s intermittent leave had been approved, he failed to give proper notice of his intention to take off on the specific day in question. Under the FMLA, “an employer may . . . require that an employee hew to [its] usual and customary procedures for requesting FMLA leave. Discipline resulting from the employee’s failure to do so does not constitute interference with the exercise of FMLA rights unless the employee can show unusual circumstances.”

The critical inquiry is whether the information conveyed to the employer is sufficient to let it know of the request to take time off for a serious health condition, including days taken off during intermittent leave.

In this instance, the employee produced paperwork dated September 4 indicating he (1) complied with all his obligations under the FMLA, (2) was approved for leave, and (3) complied with his employer’s leave policies, specifically the FMLA policy published in the company’s employee handbook. The court therefore ruled that he sufficiently alleged he gave proper notice that he would be absent on the day in question and denied the employer’s request to dismiss the case before a full trial.

As for the employee’s FMLA retaliation claim, the court further determined that the close timing between his request for FMLA leave and his termination was enough to establish a causal link between the two, and therefore, it allowed his retaliation claim to proceed to trial as well.

It noted that requesting and being granted leave are protected activities under the FMLA, meaning an employee cannot be terminated for either. Walpool v. Frymaster, LLC, No. 1700558 (USDC, W.D. LA, Nov. 16, 2017, Hicks, S., Jr.).


Although the law allows an employer to require an employee to follow its normal policies and procedures for giving notice of an absence even during intermittent FMLA leave, you should be absolutely certain you didn’t receive adequate notice of an FMLA-protected absence before taking adverse action against an employee. Otherwise, you face the real possibility of strong claims for FMLA interference and retaliation.

As the court in this case noted, establishing adequate notice isn’t a high burden for employees to meet. Therefore, you should give them the benefit of the doubt when it comes to notice for an FMLA-protected absence.

David Theard is an associate in Jones Walker’s labor relations and employment practice. Theard is also an editor of Louisiana Employment Law Letter. He can be reached in New Orleans at or 504-582-8402.