Coping with FMLA Intermittent Leave: Some Relief From the Courts

Philip Berkowitz and Trent M. Sutton
January 16, 2009 — 2,601 views  
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The FMLA imposes extraordinary burdens on employers to accommodate eligible employees by providing intermittent, as opposed to regularly scheduled, leave. Intermittent leave is often difficult to schedule. It is also often inconvenient to the employer and the eligible employee’s co-workers, who may have to cover for the employee who is on leave.

But one court recently provided some helpful guidance to employers: In Davis v. Michigan Bell Telephone Co., 2008 U.S. App. LEXIS 20438, No. 07-1512 (6th Cir. Sept. 29, 2008), the court held that employers may lawfully re-evaluate an employee’s eligibility for intermittent leave at the beginning of each new 12-month period.1

Intermittent leave

The FMLA allows employees to take 12 weeks of unpaid leave in a 12-month period [2] for family or medical reasons. The reasons include the birth or adoption of a new child and the serious health condition of the employee or the employee’s immediate family member. An employee is eligible for FMLA leave if s/he has been employed with the employer for at least 12 months and worked at least 1,250 hours during the 12-month period immediately preceding the leave.

While most leave is taken in a single block of time, the FMLA provides that, in some situations, an employee may take intermittent leave. Intermittent leave is leave taken in separate blocks of time, from an hour or more, because of a single qualifying reason. For example, an employee may periodically need to leave for several hours a week for medical appointments, or take several days at a time over an extended period, such as for chemotherapy. Scheduling intermittent leave can be burdensome to the employer as well as the employee. Moreover, the period of leave can extend well beyond the normal 12 weeks that would be the case in a single block of time.

The Davis court: Measuring Eligibility Periods

In Davis, the 6th Circuit addressed the issue of the permissible length of intermittent leave as it relates to the FMLA’s 12-months and 1,250-hours eligibility factors. The employer had approved its customer service employee for intermittent leave in September 2004  as a result of the employee’s depression. After taking several discrete absences, the employee began an absence in mid-December that extended to mid-January. The company followed the calendar year for its 12-month FMLA period. The employee was suspended for absenteeism when she failed to return by a specified date in the new year. Soon thereafter, the employee asked that her absences be treated as FMLA leave, but the company denied her request, finding that she was not eligible for FMLA because she had worked less than 1,250 hours in the previous 12 months. She was terminated soon thereafter. She filed suit, claiming that the company had failed to provide proper notice of her ineligibility, interfered with her FMLA rights, and retaliated against her for asserting her rights.

At the district court, the employee argued that her January 2005 absences were part of a continuous absence that began in December 2004, and that the company erred in not counting the January absences as part of her intermittent leave that had been approved in September 2004. The District Court dismissed her claims, holding that eligibility for intermittent leave cannot be carried over from one 12-month FMLA period to the next.

The 6th Circuit affirmed, holding that FMLA eligibility is determined as of the date the leave begins. Intermittent leave begins on the first absence caused by the serious health condition. It extends throughout the 12-month FMLA period to any absence caused by the same condition.

Once a new 12-month FMLA period begins, however, the intermittent absences caused by the same health condition constitute a new period of leave. “Otherwise, there would be no point at which the initial period of intermittent FMLA leave ended and a new period commenced,” and employees would be forever entitled to 12 weeks of FMLA leave each year because of a single eligibility determination. Accordingly, the court held that “absences caused by the same chronic condition, but occurring in different 12-month FMLA periods, must constitute different periods of FMLA leave.”

The appeals court rejected the employee’s argument that it was not proper to reevaluate her eligibility in the middle of a single continuous absence that extended from mid-December to mid-January. She had claimed that her eligibility for FMLA, determined in September 2004, should have extended until she returned to work in January 2005. But the court ruled that intermittent leave is not a continuous period, by definition, and therefore does not simply end when the employee returns to work. Intermittent leave contemplates returns and absences at various times through the FMLA period. Accordingly, the most logical end of intermittent leave is the beginning of a new 12-month FMLA period.


The Davis decision provides helpful guidance and support to employers faced with intermittent leave requests that cross FMLA periods. Eligibility for intermittent leave is determined on the date the leave begins and does not extend into the following 12-month period.

1 The 6th Circuit has jurisdiction over federal courts in Kentucky, Michigan, Ohio, and Tennessee. [Back to reference]

2 Employers are given the option of deciding which 12-month period to use to measure employee eligibility. Employers may establish the 12-month FMLA period as a calendar or fixed 12-month period, a 12-month period measured forward from the date of an employee’s first FMLA leave, or a rolling 12-month period measured backward from the date an employee uses any FMLA leave. If the employer has not notified its employees of the period it will use, courts will select the one most advantageous to the employee.

For more information on this issue or any other labor or employment law matter, please contact your regular Nixon Peabody attorney or:

Philip M. Berkowitz at 212-940-3128 or [email protected]

Trent M. Sutton at 585-263-1221 or [email protected]

Philip Berkowitz and Trent M. Sutton

Nixon Peabody LLP