Managing employees on intermittent leave under the Family and Medical Leave Act, and determining the eligibility and duration of intermittent leave, are certainly among the most vexing issues facing employers under any of the federal employment laws. Employers often feel as though they are powerless to manage intermittent leave and are perplexed by the FMLA’s eligibility requirements.

In Davis v. Michigan Bell Telephone Co. , the 6th U.S. Circuit Court of Appeals approved an approach to FMLA eligibility that might be of assistance to employers in this regard.

Eligible in 2004

Candice Davis was a customer service representative for Michigan Bell. She was diagnosed with depression in 1999, approximately two years after she began her employment. Prior to September 2004, Davis had requested FMLA leave on several occasions, but was denied each time on the grounds that she was ineligible for such leave, having failed to work at least 1,250 hours during the 12-month period immediately preceding the commencement of the leave, according to the opinion. Davis, however, qualified for FMLA eligibility Sept. 24, 2004, and immediately sought intermittent leave, while providing the appropriate health care certification, according to the opinion.

Over the next few months, her depression caused her to take several discrete absences from work and each time she was absent, she submitted medical documentation supporting her leave. On Dec. 23, 2004, Davis began an absence that continued into 2005. On Jan. 12, 2005, Michigan Bell notified Davis that her absences for the calendar year, that is — her absences beginning Jan. 2, 2005, would be considered “an unexcused absence unless Davis sought and received FMLA for those absences. Davis was further notified that she would be considered to have resigned if she did not report to work on January 14,” the opinion noted. When Davis reported for work Jan. 15, one day after her return deadline, she was suspended pending termination for violation of the company’s attendance policy. During Davis’ suspension, the company reviewed her FMLA eligibility and determined that she had not worked 1,250 hours in the 12 months between Jan. 1, 2004, and Dec. 31, 2004, according to the opinion. Michigan Bell “therefore refused to convert Davis’ unexcused absences from January 2005 into FMLA leave and terminated her employment,” the opinion noted. The company based the FMLA-year on the calendar, rather than on the 12-month period at the commencement of leave. As discussed below, this small change was the critical factor in the company’s denial of Davis’ request for leave after Jan. 1, 2005.

FMLA Claims

Davis brought suit under the act, claiming that Michigan Bell had retaliated against her for asserting her rights under the FMLA, interfered with her FMLA rights in 2005 and failed to provide notice of her ineligibility.

At the conclusion of discovery, both sides submitted motions for summary judgment. Michigan Bell argued that FMLA eligibility for intermittent leave cannot be carried over from one 12-month FMLA period to the next. Therefore, because the company used a calendar year for FMLA eligibility, rather than a rolling year, it was entitled to re-evaluate her eligibility as of her first request for leave in 2005.

The district court agreed with Michigan Bell, holding that “an employer may recalculate an employee’s FMLA eligibility at the commencement of the first absence in a new twelve month period as designated by the employer.” As such, the company had not interfered with Davis’ FMLA rights “because Davis had not worked enough hours in the preceding twelve months to be eligible for FMLA benefits with respect to her absences occurring after January 2, 2005.” Davis appealed.

When Did Leave Commence?

The appellate court began its consideration by noting that the regulations to the FMLA state that “the determination of FMLA eligibility must be made as of the date the leave commences.” Furthermore, the court held that “when an employee has a chronic health condition for which intermittent FMLA 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.” The court went on to find that “once a new twelve month FMLA period begins, any additional absences caused that by same chronic condition would constitute a new period of intermittent FMLA leave.” Because “a period of intermittent leave cannot last beyond the specific twelve-month FMLA period in which it begins … absences caused by the chronic condition, but occurring in different twelve-month FMLA periods, must constitute different periods of FMLA leave.”

In short, because the company calculated the FMLA-year based upon the calendar, Davis needed to renew her leave as of Jan. 1, 2005. Had the company used a rolling-year calculation, her eligibility for leave would have been redetermined Sept. 24, 2005.

Applying these precepts to Davis’ leave, the court found that, because Michigan Bell calculated the FMLA-year based upon the calendar, “because the FMLA speaks in terms of twelve-month periods … the most reasonable conclusion is that a period of intermittent leave terminates when a new twelve-month FMLA period begins.”

DOL Letter

The 6th Circuit referenced a Department of Labor opinion letter of Sept. 11, 2000, for support. In this letter, the DOL gave an example of an employee with an FMLA-qualifying chronic condition who “would have to re-qualify under the 1,250-hour eligibility test to be entitled to take FMLA leave for the same chronic condition in [a] new twelve-month period.”

The court also found a practical basis for the re-qualification requirement: “it would be unduly burdensome on a business’ 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.”

Inasmuch as Davis needed to re-qualify for FMLA leave as of Jan.1, 2005, Michigan Bell appropriately looked to calendar year 2004 to determine whether she had worked 1,250 hours. She had not. Therefore, Davis was ineligible for FMLA leave as of the first business day of 2005.

To the extent that Davis was ineligible for FMLA leave in 2005, her retaliation claim failed as a matter of course.

It should be noted that the calendar-year FMLA calculation was in place and had been applied by Michigan Bell, prior to Davis’ first request for leave. An employer is entitled to choose the 12-month period used for calculating FMLA leave, but must apply this calculation consistently and, if the employer changes its method of calculation (from rolling to calendar or vice versa), it must use whichever calculation is most beneficial to the employees on (or seeking) leave during the 12-month transition period. •

Sid Steinberg is a partner in Post & Schell’s business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA.