Court: Intermittent FMLA leave won’t cover tardiness, bathroom breaks

Employees are becoming well versed in the FMLA game, and you’re paying the price.

Unscheduled intermittent leaves now account for a huge portion of all FMLA leaves of absence. And while the law does allow employees to take FMLA leave in small bites for a doctor’s visit or to care for a sick relative, it doesn’t give them unfettered rights to random work breaks or to arrive late without a good excuse.

That’s why employers can (and should) demand medical certifications for all FMLA leaves and challenge intermittent-leave requests to create a less disruptive schedule. As a new court ruling shows, the FMLA wasn’t intended to cover random breaks that damage the organization’s productivity.

Recent case: Call-center employee Kenneth Mauder, who has diabetes, frequently arrived late to work. His diabetes medicine caused temporary uncontrollable bowel movements. He demanded unfettered permission to take lengthy restroom breaks. The company denied his request because those breaks hurt the call-center’s responsiveness.

After the company fired Mauder for performance reasons, he sued, alleging he was entitled to FMLA leave for those bathroom breaks.


The court disagreed, saying that such breaks weren’t the sort of thing that the FMLA protected unless he actually was too incapacitated to come to work at all. (Mauder v. Metropolitan Transit Authority of Harris County, No. 05-20299, 5th Cir., 2006)

Note: In cases of employees’ physical problems, consider whether the ADA applies. It may require periodic breaks as accommodation.