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Can intermittent FMLA leave be used to eliminate mandatory overtime requirement?

October 23rd, 2014  |  Kathy Kapusta

Addressing what it labeled “the novel question of whether an employee could use his yearly FMLA leave allotment to essentially permanently change his position into one in which he was no longer required to work overtime,” a federal district court in Connecticut observed that the potential for such an outcome has been “noted since the inception of the FMLA and it appears to be a result contemplated by the statute and the DOL.” Thus, to the extent an employee was able to use his FMLA leave to essentially obtain an accommodation that might not be available under the ADA and, in effect, eliminate his job’s essential function of overtime, this result was permitted by the statute, the court concluded.

Headaches triggered by overtime. In his position as a material storage supervisor with the Connecticut Department of Transportation, the employee was required to work considerable overtime during the snowy winter months. In 2000, he was diagnosed as suffering from cluster headaches, a condition more intense than migraines. Several years later, he informed the DOT that his doctor had determined that working overtime was a main trigger for his headaches and requested that his supervisor be notified of his work restrictions.

OT is essential job function. In response, he was told that overtime was an essential function of his job and that under his union contract, if he couldn’t perform an essential function, he would be placed in a positon with “less arduous duties.” If no such position was available, he would have to apply for disability retirement or face separation proceedings.

Request for intermittent leave. Although he applied for FMLA leave, he failed to submit a complete application. After a subsequent meeting with HR, his union rep, and his supervisor, the employee indicated that he would apply for disability retirement. He was placed on leave while the separation process commenced but was not discharged since he had six months of accrued vacation and sick leave.

While on leave, he requested that he be allowed to return to work and take intermittent FMLA leave in the event of mandatory overtime. In response, the FMLA coordinator determined that he was not eligible for FMLA leave. Unable to financially support his family, he withdrew his retirement disability application and returned to work with no medical restrictions. He later left the DOT to work elsewhere, but returned in a job that did not require overtime. He subsequently sued, alleging that DOT officials interfered with his rights by denying him leave under the FMLA.

Intermittent leave for overtime allowed. The defendants argued that the employee was seeking a benefit not provided under the FMLA, which was “to be relieved of ever having to work overtime for his lifetime while employed” at the DOT. They further contended that he was only “entitled to medical leave during the times he was incapacitated by his headaches,” not medical leave each time he was required to work mandatory overtime to avoid the possibility of triggering a headache. Rejecting this contention, the court pointed out that the FMLA does not require a complete inability to work fulltime but rather permits leave to be taken “intermittently or on a reduced leave schedule when medically necessary.”

The defendants’ argument that the employee could only receive FMLA leave when he was actually incapacitated by headaches was also belied by the FMLA regulations, which provide that “absences attributable to incapacity [for chronic conditions] qualify for FMLA leave even though the employee  . . . does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive, full calendar days.”  Indeed, the court pointed out, the FMLA regulations provide the example of an employee with asthma being unable to work because his doctor has advised him to stay home when the pollen count exceeds a certain level.

Avoid overtime during snow season? As to whether the employee could use his yearly FMLA leave allotment to essentially permanently change his position into one in which he was no longer required to work overtime, the court found that this potential result stemmed from the FMLA’s allowance for intermittent leave in hourly increments, which, given the yearly 12-week allotment, translated into 480 hours per year based on a 40-hour work week, or 9.2 hours per week, or 1.8 hours per work day. Because his position required overtime only during periods of snow, this yearly leave entitlement would be sufficient to relieve him from all of the overtime required for his position, except perhaps in the most severe of winters, the court reasoned. Thus, the FMLA could be used to essentially create a position with no overtime required.

After examining the history of the statute’s enactment, the court found that to the extent that the employee was able to use his FMLA leave to essentially obtain an accommodation that might not be available under the ADA — the elimination of an essential job function: mandatory overtime —  this result was permitted by the statute. Although Congress has since considered imposing restrictions on intermittent leave, none have been imposed, the court noted, observing that nothing in the FMLA restricts an employee from using the statutory entitlement to leave to eliminate overtime. Accordingly, the employee was not precluded from taking leave due to the “indefinite and prophylactic” nature of his request.