DOL Clarifies that FMLA Leave is Available to Care for Children and Parents Outside Medical Setting, Including to Attend School ISP Meetings.

Last month, the federal Department of Labor issued an Administrative Opinion letter that employees are eligible to take FMLA leave to attend meetings at their child’s school to discuss their Individualized Educational Program (IEP) required by the Individuals with Disabilities Education Act (IDEA).   FMLA Op Ltr No. 2019-2-A.  The DOL explained that the “analysis and conclusion in this opinion letter apply to any meetings held pursuant to the IDEA, and any applicable state or local law, regardless of the term used for such meetings.” The DOL had previously approved FMLA leave at attendance at meetings to discuss a parent’s care as well. The employee’s need to attend “IEP meetings addressing the educational and special medical needs” of the children —who have serious health conditions as certified by a health care provider—is a qualifying reason for taking intermittent FMLA leave.”


As explained by the DOL,

The Individuals with Disabilities Education Act (IDEA) requires public schools to develop an IEP for a son or daughter who receives special education and related services with input from the child and the child’s parents, teachers, school administrators, and related services personnel. Under the IDEA, “related services” include such services as audiology services, counseling services, medical services, physical therapy, psychological services, speech-language pathology services, rehabilitation counseling services, among others.

In the particular fact situation, the employee had already been approved for intermittent leave to care for her children, but the employer would not permit her to use FMLA leave to attend mandatory ISP meetings at the school. The “children receive pediatrician-prescribed occupational, speech, and physical therapy provided by their school district, and that four times a year their school holds CSE/IEP meetings to review their educational and medical needs, well-being, and progress.”  The DOL found that the employee’s

attendance at these CSE/IEP meetings is “care for a family member … with a serious health condition.”  29 C.F.R. § 825.100(a); see also 29 U.S.C. § 2612(a)(1)(C); 29 C.F.R. § 825.112(a)(3).  As noted above, “to care for” a family member with a serious health condition includes “to make arrangements for changes in care.” 29 C.F.R. § 825.124(b).  This includes taking leave to help make medical decisions on behalf of a hospitalized parent or to make arrangements to find suitable childcare for a child with a disability.

The DOL had previously approved FMLA leave for attendance at “[c]are [c]onferences related to her mother’s health condition,” because her attendance at these conferences was “clearly essential to the employee’s ability to provide appropriate physical or psychological care” to her mother.  WHD Opinion Letter FMLA-94 . . . “


In this situation, the employee attends

these meetings to help participants make medical decisions concerning [the] children’s medically-prescribed speech, physical, and occupational therapy; to discuss [the] children’s wellbeing and progress with the providers of such services; and to ensure that [the] children’s school environment is suitable to their medical, social, and academic needs.  [The] child’s doctor need not be present at CSE/IEP meetings in order for [the employee’s] leave to qualify for intermittent FMLA 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.

Sixth Circuit Rejects FMLA Leave to Rest Shoulder (by playing golf) When FMLA Use was Approved Only for Incapacitating Flare-Ups Which Prevented Plaintiff from Working

Last week, the Sixth Circuit affirmed an employer’s summary judgment on an FMLA retaliation claim where the employee was fired after being observed on two occasions playing golf when he had called off work under the FMLA due to a shoulder disability.  LaBelle v. Cleveland Cliffs, Inc., No. 18-2444 (6^th Cir. 9-13-19).  When the employer approved his intermittent leave request, it limited his FMLA use to the monthly “flare-ups” of his shoulder condition and four medical appointments each year.  However, the plaintiff was stacking his FMLA leave in between or following pre-scheduled vacation time, he says, to give his shoulder a rest.  The employer concluded that if he could play golf, he could work.  The FMLA leave was approved for “flare-ups” that incapacitated him, not for rest by playing golf.  The Court agreed and held that the employer did not unlawfully retaliate in firing the employee for FMLA abuse and did not even need to rely on an honest belief defense.

According to the Court’s opinion, the employee suffered bone deterioration from avascular necrosis and had already had hip replacement surgery in 2012.  The condition then began affecting his shoulders, causing him to suffer constant pain.  After receiving disciplinary counselling for attendance in 2016, he explained that he was missing work because of shoulder pain and was directed to seek FMLA leave.  His first FMLA request was denied because he failed to show the necessary incapacity or regular medical treatment for a chronic condition.   His next request from a different physician was granted for intermittent monthly three-day flare-ups and for four medical appointments per year.  


Over the next year, the employer then noticed that the plaintiff suspiciously took his FMLA leave in between or immediately following pre-scheduled vacation and assigned a private investigator to observe him on FMLA days, which suspiciously coincided with the plaintiff’s Tuesday golf league.

The videos showed that the plaintiff’s golf swing was unimpaired without any sign of pain or discomfort.  The employer provided the plaintiff with an opportunity to defend himself from what appeared to be FMLA abuse.   He explained that he was in constant pain and he thought that he could take the FMLA whenever he wanted and so he usually attached them to a weekend or other time off in order to give his shoulders the maximum rest from his repetitive duties. He claimed that golf was not nearly as hard on his shoulders as his job.  

The employer concluded that if the plaintiff was well enough to golf, he was well enough to work and terminated his employment.  He pursued union arbitration, but lost.  He then filed his federal lawsuit, alleging both FMLA interference and FMLA retaliation.  


The Court agreed that he had no interference claim because the employer permitted him to take FMLA leave and only fired him after he returned to work.  As for his retaliation claim, the plaintiff pointed to emails where the HR employees expressed hostility to FMLA use and desire to terminate some slackers.   However, in attempting to prove pretext, he did not argue that his golfing was not the actual reason for his termination.  Instead, he argued that his golfing did not constitute FMLA abuse – i.e., that the employer’s articulated reason for his termination had no basis in fact.   Sadly for him, the Court agreed with the employer that his FMLA use had only been approved for medical appointments and flare-ups, not for rest.

But occasional rest to alleviate low-level background pain is not what his FMLA leave was for.  Thus, as the arbitrator put it, “[t]here is no doubt that [LaBelle] did not use his FMLA leave in accordance with the restrictions imposed by [his doctor], or in accordance with the purposes of the law.”  . . .  If LaBelle had constant pain that required occasional long weekends to mitigate, he should have requested FMLA leave for that purpose.   

The Court found that the plaintiff failed his burden of showing that the employer’s reason had no basis in fact.  Accordingly, the employer need not rely on an “honest belief” defense that it honestly believed the plaintiff had abused his FMLA leave even if the golf game constituted rest from his repetitive motion duties. 

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.

Sixth Circuit Rejects FMLA and ADA Claims When Plaintiff Had Missed and Would Continue to Miss Months of Work Each Year

On Monday, the Sixth Circuit Court of Appeals affirmed the dismissal of the FMLA and ADA claims brought by a bank teller.  Boileau v. Capital Bank Financial Corp., No. 15-5820 (6^th Cir. 4-25-16).  The employer was permitted to terminate the plaintiff under the FMLA when her physician had certified that she would be unable to return to work at the conclusion of her FMLA entitlement.  Further, she could not prevail on her ADA claim on the grounds that a brief medical leave would constitute a reasonable accommodation because her job required regular attendance, she had already missed several months and her physician certified that she would regularly miss several months for the rest of her life.

According to the Court’s opinion, the plaintiff suffered from lupus and took a lot of FMLA leave in blocks and through intermittent leave.  In 2011, she took 3 weeks of leave following surgery and then intermittent leave for the remainder of the leave year.  In 2012, she then took another 2 weeks in January and then repeatedly delayed returning until April 2, by which time her physician had reported that she could expect to be incapacitated for 8-12 weeks every 1-2 months for the rest of her life.  By mid-March, she had exhausted her FMLA leave entitlement, her branch was short-staffed and, so, her employer terminated her employment.  When she applied for unemployment, her physician certified that she was unable to work until April 18, 2012. 

The Court easily rejected her FMLA claim because she had only speculative assertions of retaliation.  When the employer is given medical information that the employee will be unable to return to work following the exhaustion of the FMLA entitlement, it is not required to wait before terminating her employment.  Further, the plaintiff could not prove that its reason for her termination – her inability to return to work at the conclusion of the FMLA leave – was pretext for retaliation.

The Court found that she could not prevail on her ADA claim because she was not qualified in that she could not maintain regular attendance, which was an essential function of a bank teller’s job.  The Court rejected the plaintiff’s argument that she only required an additional short medical leave of absence (i.e., two weeks) because her physician had already certified that she would regularly miss work for prolonged periods for the rest of her life.  Individuals who miss work for months at a time are not qualified under the ADA when regular attendance is an essential function of the job.

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.

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.

Sixth Circuit: Eligibility Determination for Intermittent Leave Begins With Each FMLA Year Regardless of When FMLA Absence Began.

Today, the Sixth Circuit affirmed dismissal on summary judgment of an FMLA claim where the employee began intermittent leave on December 13 for chronic depression and did not return to work until January 15. Davis v. Michigan Bell Telephone Co., 07-1512 (6th Cir. 9/29/08). Although the employee had been eligible for FMLA leave when she began her absence on December 13, she had not worked 1250 hours in 2004 and, thus, was ineligible for FMLA leave in 2005. When her therapist informed her employer that she was capable of returning to work on January 3, but she did not return until January 15 – despite a warning from her employer, the employer deemed her absence as unexcused and terminated her employment in February for the chronic poor attendance. Although another physician later certified in March that the plaintiff’s continuing absence was related to her chronic depression, the employer determined that she was ineligible under the FMLA because a new leave year began on January 1 and she had not worked 1250 hours in the preceding calendar year. The Court rejected the plaintiff’s claim that she was not given effective notice of her ineligibility.

According to the Court, “[w]hen an employee has a chronic health condition for which intermittent FMLA leave has been approved, the leave commences upon the occurrence of the first absence caused by that condition, and it extends to cover every other absence caused by that condition during the same twelve-month FMLA period.” Thus, once an employee is deemed eligible for FMLA leave, every period of intermittent leave taken during the rest of that FMLA leave year for the same medical condition is deemed to be covered – regardless of the intermittent periods of work and regardless of whether the employee had worked 1250 hours in the twelve months preceding each absence. “In other words, each absence subsequent to the first absence is not treated as a separate period of FMLA leave with its own commencement date. To hold otherwise would render the term “intermittent leave” meaningless and would effectively read it out of the FMLA since a period of intermittent leave “must, by definition, comprise periods . . . in which the employee is present at work.” Id. “Thus, a series of absences, separated by days during which the employee is at work, but all of which are taken for the same medical reason, subject to the same notice, and taken during the same twelve-month period, comprises one period of intermittent leave.”

On the other hand, that intermittent leave, “can only extend to the end of the twelve-month FMLA period in which it began. See id. at 681-83. Once a new twelve-month FMLA period begins, any additional absences caused by that same chronic condition would constitute a new period of intermittent FMLA leave. See id. at 681. Otherwise, there would be no point at which the initial period of intermittent FMLA leave ended and a new period commenced. Under that scenario, employees would never have to reestablish their eligibility for FMLA leave and would therefore be perpetually entitled to twelve weeks of FMLA leave per year based on a single eligibility determination . . . . a period of intermittent leave cannot last beyond the specific twelve-month FMLA period in which it begins. Therefore, absences caused by the same chronic condition, but occurring in different twelve-month FMLA periods, must constitute different periods of FMLA leave. And as different periods of leave, they must have different times of commencement. The clear consequence of this is that [plaintiff’s] unexcused absences
in January of 2005, if approved as FMLA leave, would have constituted a new period of FMLA leave that commenced in January of 2005. Therefore, [plaintiff’s] FMLA eligibility was appropriately reevaluated in January of 2005, and the defendant was correct in determining that [plaintiff] was not eligible for FMLA leave with respect to her unexcused absences.”

The Court rejected “the concept of intermittent leave . . . should be considered a single period of leave simply because it is a continuous period of absence. A period of intermittent leave, however, is not made up of a single continuous absence. As explained above, an employee does not begin a new period of leave with each new absence. An obvious corollary to this rule is that the simple act of returning from an absence does not itself terminate a period of intermittent leave. Since a period of intermittent leave is not terminated solely by the act of returning to work, there is no basis for saying that [plaintiff’s] intermittent leave terminated when she returned to work on January 15. But it is obvious that the period of intermittent leave that began in September of 2004 must end at some point. If the intermittent leave that began in September of 2004 instead ended upon the beginning of a new twelve-month FMLA period, then [plaintiff’s] request for FMLA leave in 2005, if approved, would have constituted a new period of FMLA leave commencing in January of 2005. Thus, the ultimate question presented by [plaintiff’s] argument is whether her intermittent leave in 2004 ended upon the occurrence of a new twelvemonth FMLA period, or whether it ended at some arbitrary point, such as her return to work on January 15. Since the act of returning to work itself does not terminate a period of intermittent leave, there is no principled reason to conclude that [her] intermittent leave should cover absences up to January 15, but not those occurring thereafter. There is, however, a logical basis for concluding that [her] intermittent leave terminated upon the beginning of a new twelve-month FMLA period. Because the FMLA speaks in terms of twelve-month periods, see 29 U.S.C. § 2612(a), the most reasonable conclusion is that a period of intermittent leave terminates when a new twelve-month FMLA period begins.”

The Court based its conclusion on a balancing of the needs of the employee with the needs of the employer. “It would be unduly burdensome on a business’s need to operate efficiently and profitably if the business were required to provide an employee with twelve weeks of intermittent leave per year perpetually based on the fact that the employee was eligible for FMLA benefits on a single day. In order to accommodate the reasonable interests of businesses, it must be possible to reevaluate employees’ eligibility at some point, and the only logical method of finding that point is to conclude that a new period of intermittent leave commences when a new twelve-month period begins.”

The Court also rejected the employee’s equitable estoppel and faulty notice arguments on the grounds that an ineligible employee is not entitled to FMLA leave even if the employer were late in notifying the employee of his or her eligibility.

Insomniacs can read the full opinion at http://www.ca6.uscourts.gov/opinions.pdf/08a0353p-06.pdf.

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 change or be 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.