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Watch calendar to keep clear of intermittent-Leave trap

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in FMLA Guidelines,Human Resources

Employees who have serious health conditions may be eligible for intermittent leave, and their eligibility is determined once per eligibility year.

Here’s how it works: Under the FMLA, your employee must properly certify that he or she has a serious health condition that requires intermittent leave. Once you determine that the employee has met the eligibility requirements (by working more than 1,250 hours during the preceding year), the employee can take intermittent leave any time during the rest of your FMLA benefit year (see box below).

But once the leave year is over, you can recalculate eligibility. If absences or work schedule caused the employee to work fewer than 1,250 hours, he or she would no longer be eligible for leave. According to a U.S. Labor Department opinion letter, that means an employee with a chronic condition like multiple sclerosis who needs intermittent leave can take it any time during the year.

You can’t deny leave later in the same benefit year just because the employee fell below the 1,250-hour work requirement at the time he took more intermittent leave. However, the eligibility clock is “reset” at the start of the new benefit year.

Recent case: Candice Davis was a customer service representative for Michigan Bell. She suffered from depression and got medical certification stating she needed intermittent FMLA leave. Michigan Bell used the calendar year to set FMLA eligibility.

As soon as she had worked 1,250 hours in the calendar year, Davis began taking intermittent leave for her depression. Her first FMLA leave came in September. She took more leave in October and November.

Davis was out at the end of December and didn’t return until January 15. However, by then Michigan Bell had fired her for unexcused absences in January, even though she had not yet used a full 12 weeks of unpaid leave.

She sued, claiming she was entitled to the total 12 weeks of leave. Not so, concluded the court. Although she could have taken as much as 12 weeks off in intermittent leave for depression during the calendar year, Michigan Bell was free to recalculate her eligibility as soon as the year ended. It did, looking back one year to see if she had worked at least 1,250 hours. With all the absences, she hadn’t and wasn’t eligible for any FMLA leave yet in the new calendar year. (Davis v. Michigan Bell, No. 06-10513, ED MI, 2007)  

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