Sixth Circuit: FMLA Notice and Intermittent Leave Rules Do Not Apply to Long-Term Medical Absence

This morning, the Sixth Circuit affirmed an employer’s summary judgment in an FMLA case where the employee’s medical condition kept him off work for approximately six months.   Mendel v. City of Gibraltar, No. 14-1789 (6^th Cir. 4-14-15).  In that case, the plaintiff worked as a part-time EMS dispatcher and was unable to report to work beginning in December 2008 due to complications from a prior hernia surgery.  Because the employer had not counted volunteer firefighters as employees, it did not think that it was subject to the FMLA and never provided any of the mandatory FMLA notices.   He had provided some medical documentation of his need to be off work and had been taken off the work schedule, but was terminated in February 2009 for failing to provide medical documentation on particular dates.  He admittedly was unable to return to work until June 1, 2009.  The Court rejected some interesting arguments that he raised about how his twelve weeks of FMLA should be counted (i.e., as though he had only taken intermittent leave and should not have been assessed FMLA leave for periods when he was taken off the work schedule).  The Court ultimately held that he could not prevail on an FMLA interference claim unless he could show that he would have been able to return to work before his twelve-week FMLA entitlement expired.

The Court rejected the plaintiff’s argument that he had not exhausted his twelve weeks of FMLA leave by June 1.  The Plaintiff argued that he should have only been assessed partial week absences because he was only scheduled to work a couple of days each week.   However, the Court noted that he was a part-time employee and the FMLA is calculated based on a regular/average work week, not on a hypothetical work week.  He missed every day that he was scheduled to work until he was fired at the end of February and was not able to return to work until June 1.

The regulations implementing the FMLA define intermittent leave as “leave taken in separate periods of time due to a single illness or injury, rather than for one continuous period of time.” 29 C.F.R. § 825.102;  . . . The clear import of the regulation and the examples it provides is that intermittent leave applies to employees who continue to work reduced workweeks.

Mendel did not—indeed, could not—continue working during the relevant period. Thus, the intermittent-leave regulations do not govern his situation.

The Court also rejected the plaintiff’s argument that he should not have been assessed with FMLA time after he was removed from the work schedule.  He attempted to analogize his situation to those of employees who are regularly rotated off a work schedule at regular periods.  However, in contrast to that situation, the “only reason” that the plaintiff was removed from the work schedule was because of his serious health condition.

Because the plaintiff’s entitlement to medical leave under the FMLA expired – at the latest – on March 26 and he could not return to work until June 1, he could not prove that his employer interfered with his FMLA entitlement by firing him in February.

It does not matter in this case that Gibraltar terminated Mendel’s employment in February of 2009, prior to the expiration of the statutory leave period. See Edgar, 443 F.3d at 506-07 (“[A]n employer does not violate the FMLA when it fires an employee who is indisputably unable to return  to work at the conclusion of the 12-week period of statutory leave.”).

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.