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Intermittent Leave Under the FMLA

May 29, 2000
Related Topics: Employee Leave, Featured Article
Intermittent medical leave under the Family and Medical Leave Act can create administrative headaches for the unprepared employer.

Employers are becoming increasingly aware of the fact that the conflict between the extensive and often confusing FMLA policy concerns and typical attendance policies have led to contradictory requirements in dealing with employee absenteeism.

This article outlines some of the basic requirements of the FMLA as they pertain to intermittent leave requests, and puts the administrative headaches into perspective.



The FMLA applies to employers with 50 or more employees working within a 75 mile radius, and provides twelve weeks of unpaid leave during a twelve-month period for eligible employees, including those with a "serious health condition."

The FMLA guarantees the right of the employee to return to the same position or to an equivalent position after an FMLA leave. Importantly, FMLA leave can be taken intermittently under certain circumstances. Defining those circumstances can present a real challenge to employers.

Requests for intermittent leave complicate an employer's ability to monitor and discipline employees for attendance issues. Employers must make sure to understand the reason for an employee's excessive absence in order to fully assess whether the absence is FMLA-related.

Although the FMLA was passed in 1993, employers continue to struggle the expansive definition of "serious health condition."

To further complicate matters, if the "serious health condition" on which the leave is based rises to the level of a disability, the employer may actually be required, under the Americans with Disabilities Act (ADA) to provide extended leaves of absence (even in excess of the twelve week FMLA leave) as an accommodation, if such leave is requested and does not present an undue hardship to the company.



Although the FMLA was passed in 1993, employers continue to struggle with its application and implementation, especially with respect to the Act's expansive definition of "serious health condition." For purposes of the FMLA, a serious health condition is defined as "an illness, injury, impairment, or physical or mental condition" that involves either: (a) inpatient care in a hospital, hospice, or residential medical facility; or (b) continuing treatment by a health care provider.

Further, the Act includes the vaguely worded provision that, when an employee is requesting leave for his or her own serious health condition, the condition must be one that "makes the employee unable to perform the functions of the position of such employee."

Courts have held that the term "serious medical condition" includes not only medical conditions causing continual incapacity, but also conditions causing occasional periods of such incapacity.

For instance, in one of the first cases of its kind, the Third Circuit Court of Appeals has held that an employee's peptic ulcer disease could be a serious medical condition for purposes of the FMLA. In Victorelli v. Shadyside Hospital, 128 F.3d 184 (3d Cir. 1997), Kathleen Victorelli, a medical technician, was discharged from her employment for violating her employer's attendance policy. Although she was evaluated as a good employee, Victorelli had a history of absenteeism, had been counseled for and warned about the problem on multiple occasions, and had been advised that any further violation of the attendance policy would result in termination of her employment.

On July 29, 1994, Victorelli informed her supervisor, by telephone, that she would be unable to come to work on that day. She returned to work but was informed, on August 1, that her employment had been terminated, based on her absence on July 29th.

Victorelli filed a lawsuit in U.S. District Court for the Western District of Pennsylvania, alleging that her employer violated the FMLA. Victorelli alleged that her absence was due to her peptic ulcer disease, an ongoing condition, and that the absence was therefore covered under the Act.

The District Court initially granted the employer's Motion for Summary Judgment, based on a determination that, as a matter of law, Victorelli did not suffer from a "serious health condition" under the provisions of the FMLA and, therefore, was not entitled to the benefits provided under the Act.

The Court of Appeals disagreed with and reversed the trial court's decision, and held that the issue of whether Victorelli's medical condition was "serious" should be left to a jury. According to the appellate court, Congress did not intend to deny FMLA protection to an employee simply because a doctor was able to mitigate the frequency of the employee's discomfort or incapacity.

The Act, according to the court, is also intended to protect those "who are occasionally incapacitated by an on-going medical problem."



The Department of Labor has issued regulations that outline actions employers may take when an employee requests leave under the FMLA. Those regulations include three specific permissible actions that employers may take when employees request leave that may be covered under the FMLA:

1. The employer may request medical certification of a claimed serious medical condition. This certification should include the medical facts that support the health care provider's designation of the condition as "serious" for purposes of the FMLA.

2. An employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second (or even third) opinion, at the employer's expense. The employer is permitted to designate the health care provider to supply the second opinion, but the selected provided cannot be employed on a regular basis by the employer. Pending the receipt of the second opinion, the employee must be provisionally provided with the benefits of the Act.

3. An employer may request a re-certification of a chronic or long term condition under certain situations, including circumstances under which the frequency or duration of an employee's absences change significantly, or when the employer receives information that casts doubt upon the employee's stated reasons for the absences. No second or third opinion on re-certification may be requested.

Failure to take these three actions was mentioned by the Court in Victorelli as an inadequacy in the administration of Victorelli's intermittent leave claim.

Although the appellate Court did not make an ultimate determination regarding whether Victorelli's leave fell under the protections of the FMLA, it specifically chided the employer for not taking actions that were clearly allowable under the Act, and that may have assisted in that determination. Because the permissible actions had not been taken by the employer, the Court remanded the case back to the trial court for a jury's decision on the issue.



Employers who receive notice of or a request for medical leave from an employee should carefully review the circumstances to determine whether obligations exist under the FMLA. Because of the complexity of the threshold determination of whether or not the claimed illness or injury is a "serious medical condition," employers should approach potential FMLA leave requests from a procedural standpoint, taking advantage of the medical certification requests allowed under the Department of Labor regulations.

Taking administrative precautions early in the process to effectively verify and implement allowable leave may preclude subsequent claims of FMLA violation against an employer. Failure to take such precautions may leave an employer at risk of the perils of a jury trial and the punitive damages that may go with it.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.

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