Accessibility Tools

Skip to main content

Important Federal Ruling Demonstrates Interplay of Intermittent Leave, ADA and FMLA

Written on .

Few problems vex employers as much as figuring out the interplay of leaves of absence required by the Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA), particularly when they involve intermittent leave, irregular and unreliable attendance.  A recent case from the federal appeals court for the Eighth Circuit addresses these issues in a number of favorable rulings for employers, in connection with the termination of an employee for violating a "no-fault" attendance policy.  Evans v. Cooperative Response Center, Inc., No. 19-2483 (5/4/21).  In this particular case, a plaintiff with reactive arthritis contended that her employer violated the ADA by discriminating and retaliating against her because she is disabled and by failing to accommodate her disability, and that the employer violated the FMLA by denying leave to which she was entitled and by discriminating against her for exercising FMLA rights.  

Without going into the detailed facts and arguments, the court essentially sets forth the following principles in ruling for the employer on all issues.

  1. Regular and reliable attendance is an essential job function and intermittent leave does not excuse an employee from essential functions.
  2. If an accommodation would leave the employee unable to perform an essential job function, including regular attendance, the accommodation fails at least for ADA purposes.
  3. It is the employee's responsibility to formally request an ADA accommodation.
  4. FMLA permits the employer to require adequate notice of FMLA leave on each occasion, and also to meet the employer's internal and customary reporting procedures, even if the employee has to make separate reports to a supervisor, Human Resources, and/or a third-party administrator.  
  5. The plaintiff lawfully got attendance points where there was no record of evidence she ever mentioned her illness was related to her certified FMLA leave and the symptoms she mentioned were not listed as symptoms in her FMLA certification forms.  
  6. The FMLA requires the plaintiff "must specifically reference either the qualifying reason for leave or the need for FMLA leave."
  7. The employee's request for FMLA leave was beyond the days certified in her FMLA certification and yet she never attempted to increase the amount of intermittent FMLA leave requested, and re-certification by employers are discretionary, not required.
  8. Where absences are not attributable to a serious health condition, the FMLA is not implicated, and the employer's normal disciplinary policies apply. 
  9. Plaintiff's past successful use of FMLA leave at her employer is strong evidence of a lack of discrimination or retaliation by the employer in the case of subsequent absences. 
  10. The employer's discretion to terminate an employee based on the mistaken belief that an absence was not FMLA eligible, standing alone, does not establish a prima facie case of discrimination.

This is part of our September 2021 Newsletter.

Click here to download the newsletter PDF

Related Content

Get Email Updates

Receive newsletters and alerts directly in your email inbox. Sign up below.

Recent Content

person staning next to someone in a wheelchair, outdoors

"No-Fault" Attendance Policy Upheld against Disability Claims

Employers continue to be confused about how to handle absences related to disabilities, as to applying their "no-fault" attendance polici...
person holding up a hand, stop, indoors

NLRB Issues First Unfair Labor Practice Complaint against Non-Competes and Training Repayment

The General Counsel of the National Labor Relations Board (NLRB), former union lawyer Jennifer Abruzzo, continues to attempt to expand th...
ftc front door

Department of Justice's Anti-trust Division Announces Anti-trust Compliance Programs Include Training for Human Resources

There is relatively recent increased attention from government enforcement authorities of anti-trust issues affecting human resource prof...
stylized ai graphic

AI Hiring Bias Is New Focus of EEOC

The Equal Employment Opportunity Commission's (EEOC) Strategy Enforcement Plan for 2024-2028 published in the Federal Register last year ...
old fashio keys, hanging on a ring, attached to a wood board

Keys to Address Employee Dissatisfaction and Activism

We are in a new age of employee dissatisfaction and activism.  There were critical labor shortages during the pandemic, and increased con...
promo graphic, Procedural Accommodations: Efficiently Handling Employer Obligations

Procedural Accommodations: Efficiently Handling Employer Obligations

The ADA and other legislation – both states as well as federal -- often require “reasonable accommodations” in a multiplicity of settings...