Intermittent Leave Limits in FMLA Med Cert Trumps ADA Duty to Accommodate

Managing FMLA intermittent leave continues to vex employers. Terminating an employee with an intermittent leave certification usually carries significant legal risk.  A Minnesota federal court decision two weeks ago upheld an employer’s termination for excessive absenteeism of an employee with an intermittent leave certification.  The court rejected the plaintiff’s numerous FMLA and ADA claims and granted summary judgement to the employer. The decision is a must-read for leave management professionals.   short term absence image

The plaintiff’s health care provider had certified that the plaintiff would need up to two full days and two half days of intermittent FMLA leave per month for her serious health condition.  In its email approving the requested leave, plaintiff’s employer told her that “[a]ny absences above and beyond the FMLA approved frequency will be considered regular absences and will be eligible for attendance points per policy.”

On six dates, plaintiff sought to use FMLA in excess of her monthly allotment as stated on the med cert form. She received attendance points for these excess absences and for other non-FMLA related absences. Based on her accumulated points, she was terminated for excessive absenteeism under the employer’s policy.

Among her legal claims were claims were that she was discriminated against in violation of the ADA and that that the employer should have granted her more leave without incurring attendance points as a reasonable accommodation. In rejecting the ADA discrimination claim, the court concluded that she could not perform the essential functions of her position and, thus, was  not a qualified individual with a disability because she “could not come to work on a regular and reliable basis.”

In rejecting the failure-to-accommodate claim, the court said that her requested accommodation–“being absent from work more frequently”—was not reasonable because it “does not enable [the plaintiff] to perform the essential functions of her job.”

For those tracking inflexible leave developments, this decision adds to that jurisprudence.