In a recent FMLA case the Eighth Circuit Court of Appeals held that where an employee’s serious health condition caused her to be unable to perform her job despite intermittent FMLA leave, the employer had no duty to retain her throughout the duration of full leave entitlement.

The employer’s termination of the employee prior to full usage of FMLA leave did not constitute interference with her FMLA rights or retaliation for her exercise of those rights.

Charlene Wisbey worked as an Emergency Dispatcher for the City of Lincoln, Nebraska, since 1979, with no attendance problems and good evaluations. In early 2007 Wisbey applied for intermittent FMLA leave. Her doctor stated on her medical certification that she “suffers from recurring cycle depression [and] anxiety [which] interferes with her sleep, energy level, motivation, [and] concentration . . . ”

The doctor stated that although she could perform some of the functions of her position, she would need to take intermittent time off “over the next 6 months or longer.” He did not identify a date by which the City could anticipate her full return to work.

The information on the certification caused the City to question whether Wisbey was still able to perform her position and ordered a fitness for duty exam. This resulted in a doctor’s opinion that Wisbey’s depression interfered with her ability to function at full capacity and that she was not fit for duty as outlined in her job description. In reliance on this medical opinion, the City terminated Wisbey prior to exhaustion of her FMLA leave entitlement based on her not being fit for duty—that is, Wisbey was, in fact, unable to work due to her condition.

Wisbey sued the City for interference with her FMLA rights and retaliation for requesting FMLA leave. The District Court granted summary judgment for the City, and this decision was upheld by the Eighth Circuit on appeal.

The Court noted that “the FMLA does not provide leave for leave’s sake, but instead provides leave with an expectation an employee will return to work after the leave ends.” Nor does the FMLA entitle an employee to substantial unscheduled and unpredictable intermittent time off for the rest of her career. Rather, where reliable attendance is a job requirement, such a situation implies that the employee is not qualified for the position.

What This Decision Means for Employers – Some Cautionary Words:

Dealing with frequent and unpredictable intermittent absences is one of the greatest FMLA challenges for employers. It is likely that employers – even those outside of the Eighth Circuit – will consider this opinion in determining how to handle an employee on FMLA leave when there is no expectation that the leave will enable the employee to return to work.

One of the purposes of FMLA leave is to enable the employee to deal with short-term health conditions without risk of job loss. If providing leave is futile, however, should the employer be required to go through the difficult exercise of managing an unpredictable intermittent leave?

This is a tempting line of thought but there are additional issues the employer should keep in mind.

  • Nothing in the FMLA or the regulations indicates that the employer can deny leave if it appears the leave will be futile in enabling the employee to return to work. This analysis would need to be integrated with consideration of the Americans with Disabilities Act (ADA). Will the employee be able to perform her position following leave with a reasonable accommodation? It is possible that additional leave following exhaustion of FMLA would have been a reasonable ADA accommodation for Wisbey. Wisbey’s physician stated she would need intermittent leave for six months or longer. He did not state she would never recover from her depression. Thus, the employer who elects to terminate an employee due to the perceived “futility” of FMLA leave to enable the employee to return to work is proceeding with risk.

[NOTE: There is no discussion in the Court’s opinion regarding accommodation under the ADA, even thought Wisbey had asserted failure to accommodate as a claim. See the discussion of the Bernhard case below.]

  • An employee on FMLA leave – whether regular or intermittent – benefits not only from job protection but also from the continuation of benefits such as health insurance. The employee’s early loss of medical coverage (or increase in price through COBRA) due to termination prior to exhaustion of FMLA leave might be seen by courts as an interference with FMLA rights.
  • Surprisingly, the Court also stated that “because Wisbey requested ‘intermittent leave’ for ‘six months or longer’ she did not have a right to FMLA leave.” This statement has no support in the FMLA or its regulations, and should not be relied upon by employers. There is no limit to the time period over which FMLA leave may be used, as long as it is supported by medical certifications when appropriate and the employee remains eligible each year by having worked the requisite 1250 hours in the previous 12 months.

Wisbey v. City of Lincoln, Nebraska (8th Cir. July 6, 2010) html

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