Employee’s FMLA Request: Intermittent Leave For Late Arrivals

An employee asked a court to rule on whether her chronic tardiness could be protected as intermittent leave under the Family and Medical Leave Act (FMLA).  “Lateness is not leave,” the court said in ruling against her.


Background: The employee was persistently late for work, usually by only a few minutes, but sometimes up to 30 minutes.  She never asked permission to be late or explained that she needed to be late for work for any reason.  She did explain her belief that she might have lupus and that she was tardy because she was sick and depressed.  When the company offered her a transfer to a later shift, the employee refused because she did not think that the change would help her tardiness.

After the employee received a three-day suspension for being late or absent 52 times in a one-year period, she reiterated that she might have lupus, but said she was looking for a doctor to diagnose her health problems.  When the company suspended her a second time a few months later for violating its attendance policy, she mentioned that her tardiness was because she “was sick,” but she had not received a definitive diagnosis.  The company offered her a medical leave, but the employee rejected the offer because she could not afford to take unpaid leave.  Ultimately, the company fired her for excessive violation of its attendance policy.

After the employee’s termination, a doctor concluded that she suffered from a connective tissue disorder that made it “impossible for her to continue the functions of her job, or to arrive at work on time.” 

Even assuming that the employee could prove that because of her medical condition, it was impossible for her to arrive to work on time, the court ruled in favor of the employer.  Here’s why her punctuality problems fell short of FMLA protection in the court’s eyes.

FMLA Compliance D

FMLA protection: The FMLA permits intermittent leave for absences where the employee is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition even if he/she does not receive treatment from a health care provider (e.g., asthma attack, severe morning sickness). 

Employee fell short: The employee could perform the functions of her position, and she even received favorable employment reviews; she simply could not get to work on time.  The employee did not require leave from work for the duration of an attack of some sort that ended when it was over or treated; she needed immunity for her perennial lateness of a few minutes, caused by a medical condition that made her resist getting out of bed to go to work.  Court: “o treat chronic lateness, even if caused by a medical condition, as an incapacity, or inability to perform, that requires intermittent ‘leave’ for the brief duration of lateness, distorts the English language and trivializes the purpose of the Act.”

FMLA protection: The FMLA requires “a medical need” for intermittent leave

Employee fell short: Although her doctor later provided a cause for her chronic lateness, he did not show a medical need to take leave intermittently.  The employee’s condition involved neither treatment nor recovery. 

FMLA protection: An employer must provide individualized notice of an employee’s FMLA rights when it has sufficient information to believe that the FMLA may apply. 

Employee fell short: The employee argued that the company was obligated to suggest to her that she use intermittent leave to excuse her tardiness.  The court found that the company was not required to provide individualized notice at all, because the employee never told the company that she was seeking leave for her late arrivals; the company could not have known that leave was being taken, nor could it be expected to treat the common occurrence of late arrivals as leave.  Even if the employer had an obligation to provide the employee with individualized notice, “nowhere do the regulations require individualized notice of the specific FMLA right to intermittent leave.”

FMLA protection: When an employee provides enough information to make the employer aware that the employee may need FMLA-qualifying leave, the employer is obligated to inquire further as to whether the leave qualifies as FMLA leave. 


Employee fell short: The company could not be expected to interpret the employee’s chronically late arrivals as instances of FMLA intermittent leave that required further inquiry, especially in the complete absence of any explanation from the employee that her late arrivals were “medically necessary” as required for intermittent leave. (Brown v. Eastern Maine Medical Center, D.C. ME, No. 06-60-P-H, 2007)