Intermittent leave continues to be the thorn in employers' sides in administering the FMLA. One key burden that intermittent leave puts on employers is covering an employee's work who is performing at less than a full schedule.
Lewis v. School Dist. #70, recently decided by the 7th Circuit, suggests it would be unlawful under the FMLA for an employer to consider an employee's use of intermittent leave when evaluating the employee's performance. Lewis took intermittent leave to care for her housebound chronically ill mother. The School District fired her during her period of intermittent leave because she had not completed all of her assigned responsibilities. The court believed that a jury could conclude that the District terminated her in retaliation for taking intermittent leave under the FMLA:
The most prominent direct evidence proffered by Ms. Lewis is Dr. Hawkins' letter informing her of the District's decision to replace her as bookkeeper. The letter offered only one justification for the District’s action: "It was determined that you miss too much work to meet the essential functions of your present assignment." ...
The actions of the school board and the superintendent during Ms. Lewis' period of FMLA leave also raise serious questions about their reason for discharging her. There is evidence that, although the District was aware that certain bookkeeper functions were not being completed adequately while Ms. Lewis was taking intermittent FMLA leave, it made no effort to take adequate steps to assuage the impact of her intermittent leave on the District's operations. A reasonable jury could conclude that the District, instead of taking such steps, expected Ms. Lewis to complete all of the duties of a full-time bookkeeper while she was working (and being paid) on an essentially part-time basis. Arguably, when her periods of intermittent leave prevented her from timely completing all of the duties she had performed as a full time bookkeeper, she was removed from her position. Viewed in this way, a reasonable jury could find that the FMLA leave granted to Ms. Lewis was illusory. ...
It could have shifted some of the bookkeeper's job duties to other employees during the time that Ms. Lewis was taking FMLA leave. It could have hired part-time help for the bookkeeper position. It also could have transferred Ms. Lewis to another position (such as a teacher's assistant position) temporarily if she was unable to fulfill the essential functions of her job while taking intermittent FMLA leave. ... The District declined to exercise any of these options. In short, we believe that a jury would be entitled to conclude that the school board and the superintendent held Ms. Lewis to the unrealistic expectation that she should accomplish satisfactorily all of the duties of the bookkeeper position during her period of FMLA-protected intermittent leave.
This opinion goes beyond what the FMLA actually requires to accommodate an employee who is taking intermittent leave. Section 825.302 of the FMLA's regulations clarifies that despite an employee's right to take intermittent leave, such leave should not "unduly disrupt the employer's operations." Moreover, Section 825.204 of those same regulations makes it clear that an employer does not have to consider alternate work arrangements to accommodate an employee taking intermittent leave. Instead, employers have the discretion to "require the employee to transfer temporarily, during the period the intermittent or reduced leave schedule is required, to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee's regular position." The only right the employee has in this instance is to "be placed in the same or equivalent job as the job he/she left when the leave commenced" when the intermittent leave is over or has been exhausted.
The court suggests that the School District may be liable for FMLA retaliation because it failed to consider any alternate work arrangements. The regulations make clear, however, that such arrangements are at the employer's discretion and not an absolute right that an employee enjoys.