Employment Law: Intermittent Medical Leave

by John Gause, Esq.
July 7, 2005, Maine LAWYERS REVIEW

The Family and Medical Leave Act (“FMLA”) provides generous protection to workers who need to take intermittent time off from work due to chronic serious health conditions. Even employees who need to take an unpredictable hour off at a time can be protected by the FMLA.

Take this example. An employee with chronic fatigue syndrome (“CFS”) works as a telephone customer service representative for a large employer. She sometimes becomes unable to function due to her illness and needs to take a one or two hour break to recuperate. It is impossible to predict when she will need the breaks.

Employer states that it would pose an undue hardship to allow the breaks because it needs all of its scheduled representatives handling calls. If employee were to leave her station without notice the calls would back up and customers would be forced to wait. Employer states that it cannot schedule other representatives to cover because it does not know when they will be needed. Is employer obligated to allow employee to leave her station to take the breaks?

The answer is yes. The FMLA allows an employee with a “chronic serious health condition” to take very short leaves of absence on an intermittent and unscheduled basis. The length of the leave can be as small as an hour or less. Moreover, employer is not relieved of its obligation to provide the breaks even if extreme hardship or inconvenience would result. In all cases that employee is eligible for leave, it must be provided.

Of course, the FMLA applies only to large employers, those with fifty or more employees. This does not mean, however, that fifty people need to be actively working for employer at one time. It is covered if fifty people appear on the payroll for twenty or more weeks during the current or preceding calendar year.

An employee is eligible to take an FMLA leave if she has worked for the employer for at least a year and has worked at least 1250 hours during that time. This works out to be an average of twenty-four hours per week. As long as the person appears on the payroll for twelve continuous months and receives benefits, however, there is no requirement that she work a regular schedule or even that she work continuously during those twelve months.

There are three basic types of FMLA leave: 1) to care for a newborn or adopted son or daughter; 2) to care for a spouse, child, or parent with a “serious health condition”; or 3) to recover from or receive treatment for the employee’s own “serious health condition.” With respect to the latter, the FMLA provides that leave may be taken “because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” It also explicitly provides that leave for a serious health condition “may be taken intermittently or on a reduced leave schedule when medically necessary.”

The Act defines a “serious health condition” as an “illness, injury, impairment, or physical or mental condition that involves . . . continuing treatment by a health care provider.” The regulations state that this includes any period of incapacity or treatment for such incapacity due to a “chronic serious health condition.” A “chronic serious health condition” is defined by the regulations as one that requires periodic visits by a health care provider, continues over an extended period of time, and that may cause episodic incapacity.

The FMLA does not require that an employee give advance notice of a leave if doing so is impracticable. The advance-notice provisions address leaves that are foreseeable. For example, if employee is going to have planned surgery in the distant future, she must give at least thirty days notice to employer. Employee must also do everything she can to minimize the disruption on employer’s business. An accountant should thus try to take a leave at some time other than the end of the fiscal year.

When the need for the leave is not foreseeable, however, employee is only required to give as much notice as is practicable. Generally, this means that employee must inform employer within one or two business days of her learning that she needs to take the leave. But if the need for the leave results from a sudden inability to work due to employee’s chronic serious health condition, employee would obviously not learn of the need for the leave until the moment it arises. In that case, which is essentially an emergency, employee is permitted to take the leave without providing any notice at all.

The regulations also provide that “there is no limit on the size of an increment of leave when an employee takes intermittent leave or leave on a reduced leave schedule. However, an employer may limit leave increments to the shortest period of time that the employer’s payroll system uses to account for absences or use of leave, provided it is one hour or less.” Thus, at a minimum, employer must allow a leave that is as short as one hour, but it must allow an even shorter interval if employer keeps track of time for payroll purposes in shorter increments.

Other than a limited exception for certain highly compensated employees (the highest paid 10 percent) there is no exception in the FMLA or its implementing regulations for hardship on the employer. This standard is more generous than that in the Americans with Disabilities Act (“ADA”) and the Maine Human Rights Act (“MHRA”). Both the ADA and the MHRA require employers to provide “reasonable accommodations” such as leaves of absence, but they are not required to do so if it would cause significant difficulty or expense. Courts have generally been sympathetic to employer arguments that it poses an “undue hardship” to accommodate unpredictable and intermittent leaves of absence. Accordingly, employees whose conditions render them occasionally and unpredictably unable to work frequently cannot rely on the ADA or the MHRA for protection.

Because there is no such limitation in the FMLA, however, covered employees cannot be disciplined or terminated for taking short episodic breaks that are medically necessary for “chronic serious health conditions” despite the fact that doing so may cause an undue hardship on employer.

Furthermore, it is employer’s obligation to treat the leave as FMLA-qualifying, even if employee does not explicitly invoke the FMLA. Employee is only required to explain the reason for the leave. It is employer’s responsibility to then seek additional information, if necessary, to determine whether the leave is covered by the FMLA. In other words, employer is charged with knowledge of the FMLA, not employee.

Accordingly, in the example given above, if the employee with chronic fatigue syndrome tells employer that she needs to take a break because she is unable to work due to her CFS, employer must find out whether she meets FMLA criteria, and, if so, it must allow her to take the break. If covered breaks are denied or if employee is fired for taking them, she would have a valid claim against employer.

Of course, covered employees cannot take unlimited breaks. Just as with all leaves under the FMLA, intermittent breaks cannot exceed a maximum of the equivalent of twelve workweeks in a given twelve-month period. Any extended FMLA leaves of absence would also contribute to the twelve-week total. But twelve weeks split into onehour increments adds up to a lot of allowable time off. The FMLA thus provides solid protection for employees with chronic serious health conditions who need to take intermittent leaves of absence.