Can you make someone who only wants intermittent FMLA take continuous leave instead?

I’ll wait patiently while you grab your pearls for clutching.

We know that the Family and Medical Leave Act permits eligible employees to take up to 12 weeks of covered leave in a 12-month period. That leave can be taken in a continuous block. Or, it can be taken in your favorite form: intermittent.

Intermittent leave involves taking leave in separate blocks of time for a single qualifying reason. (Technically, employees can also use FMLA on a reduced leave schedule by reducing the employee’s usual weekly or daily work schedule.)

Over the weekend, I read this federal court opinion about an employee who applied for and took intermittent FMLA for a few years. But, in 2016, HR put the kibosh on that.

Instead, HR placed the employee (and soon-to-be plaintiff) on continuous FMLA leave, stating that he could not work with the restrictions listed on his physician-provided FMLA certification form. So, the company told the plaintiff that he could return to work if his physician lifted the restrictions listed on his FMLA form. However, the plaintiff’s doctor refused and did not clarify whether the restrictions applied only during flare-ups.

Yadda yadda yadda, we have an FMLA lawsuit.

Now, you may be thinking to yourself, how did the company retaliate?” Well, it didn’t. This is an FMLA “interference” lawsuit. The FMLA prohibits an employer from interfering with, restraining, or denying an eligible employee the exercise of any right to leave under the Act. And, to succeed on a claim of interference, the employee doesn’t need to prove animus or discrimination or anything like that. Instead, the employee must show that his employer denied him an entitled benefit under the FMLA.

Well then, is forcing an employee to take continuous leave (rather than intermittent leave) considered FMLA interference? Let’s hear it from the Court:

By placing [the plaintiff] on continuous FMLA leave, [the employer] necessarily denied [his] concurrent request for intermittent leave. The nature of continuous leave pretermits an employee’s ability to take intermittent leave. [The employer’s] decision to place [the plaintiff] on continuous leave meant that he could not use the intermittent leave he requested.

The FMLA entitles eligible employees to both “intermittent” leave and, when medically necessary, “continuous” leave. Once [the plaintiff] notified [the employer] that his medical condition required a flexible work schedule via intermittent leave, the FMLA obliged [the employer to grant [his] request….[The employer’s] failure to provide [the plaintiff] that intermittent leave violated the FMLA.

Now, the employer here does have an out. That is, an employer does not interfere with FMLA rights “if it correctly determines that [an employee’s] limitations required continuous leave.” But, since it’s not clear here whether the defendant was right or wrong, that’s going to be a jury question.

So, what should an employer do if it questions any employee’s medical certification? Well, I’ll leave the DOL fact sheet right here. And, before I go, do yourself a favor and head over to Jeff Nowak’s FMLA Insights for “Fighting FMLA Abuse in the Summertime: Top 10 Employer Tools to Keep Employees Honest.”

You’re welcome.