Administering the FMLA Just Gives Me a Headache

Most employers know that they are required to grant intermittent leave to eligible and qualified employees. But what if that intermittent leave request is relief from overtime to avoid a health problem?

Such was the case in Santiago v. Department of Transportation, et al.  Plaintiff worked in a position with the DOT that included mandatory overtime. He suffered from cluster headaches, which his doctor stated were exacerbated by excessive work hours. He requested intermittent FMLA leave to optimize his ability to reduce or avoid the cluster headaches (which, for those readers who don’t know, are sometimes referred to as “suicide headaches” because of the number of people who have committed suicide from the pain of these). The DOT refused that leave, for among other reasons, because plaintiff was not asking for the leave to recover from a qualifying health condition or to receive treatment, but only to avoid exacerbating his health condition.

The court noted that FMLA is proper if the employee asks for it for the purpose of avoiding the onset of an illness, despite the fact that the employee is not receiving treatment during that time for the condition nor will the employee be absent for three or more consecutive days. The court noted that even the regulations provide an example of proper intermittent FMLA leave as an employee with asthma who is told to stay home on days when the pollen count is high so as to avoid an asthma attack.

The lesson for employers is clear. Don’t automatically reject a request for intermittent FMLA leave because the employee is neither recovering nor obtaining treatment during that time period.  Intermittent leave is permissible even if the reason is to avoid exacerbation of a qualifying condition. Of course, the employer still has the right at the time of the request to not only require a medical certification but to require a second opinion from its own chosen doctor.

While the court in Santiago only ruled on the issue of whether FMLA leave was appropriate to relieve the plaintiff from overtime obligations, an important question that wasn’t addressed is whether relief from overtime is a reasonable accommodation under the ADA. We’ll talk about that tomorrow.