Intermittent leave under the Family Medical Leave Act (“FMLA”), continues to create problems for employers, as illustrated by Lewis v. School District #70, a recent case from the Seventh Circuit.  Ms. Lewis was the bookkeeper for the school district.  From 1997 until 2004, Ms. Lewis was a great employee.  However, during the 2003 - 2004 school year, both of her parents became terminally ill and five other family members or close friends died.  Because of these circumstances, and, with the superintendent’s permission, Ms. Lewis missed 72.5 out of 242 days of work in the 2003 - 2004 school year.  Ms. Lewis continued to perform her bookkeeping duties during most of this time, either in the evenings or on the weekends, and was not on any formal “leave.”  She was not paid for the time spent working on evenings or weekends, and her absences were unpaid.

Ms. Lewis continued to have frequent absences in the early months of the 2004 - 2005 school year.  In November 2004, the school district informed Ms. Lewis of her FMLA rights, which she formally elected on an intermittent basis.  Despite recognizing that Ms. Lewis’ absences were covered by the FMLA, the superintendent communicated to Ms. Lewis that he felt her performance was slipping.  The school district’s tax payments to the IRS had been late, it had been denied credit due to a problem on its credit check, a number of reports had not been completed, and bills were being paid past due.  In March 2005, the superintendent told Ms. Lewis that she missed too much work to meet the essential functions of her job.  She was given the option either to resign or be reassigned to a lower position.  She resigned and sued for retaliation under the FMLA. 

The Court rejected the school district’s attempts to dispose of the case before trial.  The Court noted that the school district did not properly treat the leave during the 2003 - 2004 school year as FMLA leave.  In addition, the Court was particularly unimpressed by the fact that the school district never allocated any of Ms. Lewis’ duties to other employees while she was out on FMLA leave.  All of the performance problems on which the school district relied could arguably be attributed to the fact that she was frequently absent and was not getting assistance from other employees.  Essentially, she was expected to complete the same tasks that she had as a full-time employee, even though she was less than full time due to her FMLA leave.  The Court found that “A reasonable jury could conclude that the District…expected Ms. Lewis to complete all of the duties she had performed as a full-time bookkeeper while she was working (and being paid) on an essentially part-time basis….  [A] reasonable jury could find that the FMLA leave granted to Ms. Lewis was illusory.” 

Employers should always designate FMLA leaves appropriately from the beginning, and be sure to inform employees of their FMLA rights as soon as the employer becomes aware of an FMLA-qualifying condition.  Additionally, employers may need to adjust the duties of employees who use substantial intermittent leave so that they are not being required to perform the same amount of work that they performed during full time status.  Finally, performance reviews should reflect expectations commensurate with the employee’s actual work time.