Articles Discussing Intermittent Leave Under The FMLA.

Intermittent leave continues to present some of the most exasperating FMLA issues. In March, the San Diego-based Disability Management Employer Coalition (DMEC) issued a white paper showing the findings of its annual 2016 Employer Leave Management Survey, which involved 1,132 U.S. employers of all sizes.

On January 27, 2017, the Eleventh Circuit Court of Appeals issued a decision that provides a cautionary tale to employers about seeking documentation from an employee on intermittent FMLA leave. In Diamond v. Hospice of Florida Keys, Inc., Case No. 15-15716 (11th Circuit, Jan. 27, 217), the Court held that an employer’s request for “proof of need” related to an employee’s intermittent absence was evidence of interference with the employee’s FMLA rights and thus precluded summary judgment for the employer.

It is well established that the FMLA does not require an employer to reduce its performance expectations for an employee who is taking leave intermittently or on a reduced schedule. Additionally, during the time the employee is at work, the employee must be capable of continuing to perform the essential functions of the job.

Thanks again to those who attended my June 23 webinar with EEOC Commissioner Chai Feldblum on the topic of “leave” as an ADA reasonable accommodation in light of the EEOC’s new technical resource issued on this topic in early May 2016. If you missed the program, you can access the webinar and materials here.

Q: One of our employees was at full-time status (40 hrs/wk.) six months ago when he was granted intermittent FMLA leave for a GI issue that flared up from time to time.

Q: One of our employees, a front desk receptionist, maintains an erratic work schedule because she must attend to her autistic son. In short, her son throws a tantrum at school if his mom does not personally drop him off and pick him up from school. For instance, he hides under a table, refuses to participate, and becomes very aggressive when his mom doesn’t not drop him off and pick him up.

Last week, I had the pleasure of presenting with EEOC Commissioner Victoria Lipnic on the EEOC’s pregnancy discrimination guidance and how employers should address pregnancy accommodations in the workplace. Our presentation was part of an outstanding FMLA/ADA compliance conference hosted by the Disability Management Employer Coalition. You can access BloombergBNA’s coverage of our presentation here (pdf).

All across America this morning, pregnant employees are screaming out in muted shouts of joy and giving each other belly bumps.

Last week, I had the pleasure of presenting with EEOC Regional Attorney in the Chicago District John Hendrickson on the EEOC’s recently drafted Pregnancy Discrimination Enforcement Guidance and how these guidelines will impact the manner in which employers will be required to provide accommodations to its pregnant employees. The session was part of my law firm’s annual employment law conference. If you missed the program, you can access the PowerPoint and audio form our presentation here. It was a great opportunity to discuss the intersection of the Pregnancy Discrimination Act and the American’s with Disabilities Act.

The U.S. Court of Appeals for the Seventh Circuit recently ruled on two important intermittent Family and Medical Leave Act (FMLA) leave issues in Hansen v. Fincantieri Marine Group.1 First, the court determined that the FMLA does not require a plaintiff to present expert testimony to prove he was incapacitated for each day for which he requested FMLA leave. Second – and perhaps more important for employers – the court decided that an employer should not summarily deny intermittent FMLA leave when an eligible employee exceeds the estimated length or duration provided by a doctor in an FMLA medical certification form.

Although I eagerly anticipate the arrival of a baby due to be born in the Nowak family within the next couple of weeks [number 4…somebody help me!], I assure you that my status as “expectant dad” is not clouding my objectivity regarding the rights of moms and dads in the workplace.

Earlier this week, the EEOC issued new enforcement guidance on pregnancy discrimination, warning employers of their obligation to provide pregnant employees reasonable accommodations in the workplace and giving employers insight into how the EEOC will enforce pregnancy-related issues under Pregnancy Discrimination Act (PDA) in the future.

Over the past few weeks, I have had the pleasure of presenting on complex FMLA issues for attorneys and HR professionals attending several seminars sponsored by the National Employment Law Institute (NELI), which puts on some of the best employment law seminars in the country (my session, of course, being a drag on their success!). During one of the sessions, an attendee asked a thoughtful question that seems to come up from time to time in my practice:

Q: One of our employees drinks a lot of water at work and goes to the bathroom continuously throughout the day. As a result, she uses far more than her normal breaks allow.

Q. We employ an FLSA-exempt employee who has been certified for intermittent FMLA leave for migraine headaches. He averages two to three intermittent absences per month. Normally, I would calculate the employee’s total FMLA allotment as 480 FMLA hours (12 weeks x 40 hrs/wk), but he claims he should be entitled to 600 FMLA hours because he averages 50 hours worked per week. Is he correct? Help!?!