Once intermittent FMLA leave expires, reset eligibility clock and demand recertification

Employees who want to take additional intermittent leave under the FMLA must comply when their employer asks for recertification.

Essentially, once an employee has used up his 12 weeks of leave in a year, he has to earn his way back to eligibility for FMLA leave.

For example, if he used all 12 weeks over the course of six months, he’d have to work another six months and 1,250 hours before becoming eligible again.

Recent case: John McGuiness has a son with severe psychological disabilities. He applied for intermittent FMLA leave in 2007 to care for the child and asked to leave two hours early every shift. His request was granted.

More than a year passed and McGuiness was terminated, in part because of excessive absenteeism.

He sued, alleging that some of that time off was to care for his son and that firing him was retaliation. But he had never requested additional intermittent leave after using up his allotment in 2007.

The court tossed out the case, reasoning that the absences weren’t covered by the FMLA because McGuiness never requested the time. His belief that FMLA intermittent leave didn’t require recertification was irrelevant. (McGuiness v. East West Industries, No. 11-628, ED NY, 2012)

Advice: Keep employees apprised of their FMLA entitlement. Send an expiration notice and explain the reapplication process. That way, there’s no question that the ball is in the employee’s court. He or she must proactively request additional leave.