Taking Intermittent Leave While on FMLA Leave | What You Need To Know

Dec 15 2021

Josh Goodbaum: Hi, Amanda!

Amanda DeMatteis: Hi, Josh. What are we talking about today?

Goodbaum: I thought we could talk about the Family and Medical Leave Act, or the FMLA, and in particular about intermittent leave. So, most people know that the FMLA is a federal law – it’s also a Connecticut law – that provides unpaid leave to employees who have a serious health condition or to take care of family members who have a serious health condition. And most people think that when they take FMLA leave, they just stop working for a while, for a sort of permanent or temporary, but fixed period of time. But the FMLA also allows employees to take what’s called intermittent leave, which means you could take a day off unexpectedly. Let’s say you have Crohn’s disease, and it flares up, and you need to take a leave because your Crohn’s disease flared up. That’s the right time to use intermittent FMLA leave. But sometimes, people get terminated while they’re out on FMLA leave, including while they are out on intermittent FMLA leave. So, how do you handle a situation like that?

DeMatteis: Great question, one we deal with all the time. Simple first rule is: call a lawyer. If you’re out on FMLA leave, whether it be intermittent or continuous, you need to talk to an employment lawyer that knows this area of the law, that knows how to handle these things, and get some really good advice. The answer to a lot of this inquiry is very fact-specific. We’re going to go through some examples but it is really fact-specific so your situation might be very, very different than the next person’s. So, when in doubt, first thing you do is call an employment lawyer.

Let’s talk about this intermittent FMLA leave. Maybe you’re taking a day off for Crohn’s disease, as Josh said. Maybe you’re taking it for physical therapy or infusions for cancer treatment. The possibilities are endless and of course, it could be for you, your own serious health condition, or one of a family member. Can you get terminated while out on intermittent FMLA leave? Simple answer: yeah, of course, you can. If you don’t have a contract that dictates the term of your employment then you’re an employee at-will, and your employer can terminate you for no reason or for any reason – whatever it is that they see fit. But there are major exceptions to that. And the biggest one as it relates to intermittent or continuous FMLA leave – you get the same protection under both, it really doesn’t make any difference – [is] if the reason that your employer is terminating you is because you took that leave, or is even motivated by the fact that you took that leave, that’s wrongful. That’s illegal. That’s a violation of your rights.

Now, most employers are never going to say to you, ‘Hey, Amanda. You’re fired because you took FMLA leave.’ Right? Employers are just far too savvy to do that. They’re not going to do that – it would be an admission of a violation of federal law and that’s very unlikely to happen. If it does, you should call an employment lawyer. But most of the time, what it is an employer is going to say is ‘Look, you know, you violated some type of policy. You have poor performance.’ or maybe the age-old ‘Your position has been eliminated.’ And if those answers, if those reasons that your employer is providing to you turn out to be true, then maybe your termination was not wrongful. They can terminate you while you’re out on leave.

But here’s where the fact-specific part really comes in. What motivated that decision? When did your employer make that decision to eliminate your position, or to terminate you because of poor performance, or some type of a violation of policy? Were you adequately warned about that? Maybe your employer has a progressive discipline policy that they didn’t follow. All of the sudden, you take FMLA leave, intermittent or continuous, and they say ‘You know what? The fact that you were late twice last month – you’re terminated.’ Well, if they haven’t followed their own policies on progressive discipline, that very well may infer that the true motivation or the true reason that they decided to terminate your employment was because you took FMLA leave because of your own serious health condition.

Now, let’s have one more example. A very, very obvious one. Let’s say you’re embezzling from your job. And at some point, you need intermittent or continuous FMLA leave and during the course of that leave, your employer discovers, ‘Hey, wow, this employee was stealing money.’ Well, yes, they could certainly, legally, and lawfully terminate you because of that. So, a lot of different, factual scenarios here, but the number one rule is: call an employment lawyer. Talk about this. It is absolutely worth your time and worth the time of any employment lawyer in Connecticut to chat with you about it. And we’re happy to be that call, if need be.

Goodbaum: Thanks so much, Amanda. Great advice. Take care!

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