Wisconsin Court Reminds Employers of Pitfalls Surrounding FMLA Intermittent Leave

  • Feb 18, 2021
  • FMLA
  • Zachary A. Alter

A Wisconsin court recently issued a stark reminder to employers dealing with employees on intermittent FMLA leave. In Kalahar v. Priority, Inc., Case No. 20-C-0055 (Feb. 3, 2021), an employer terminated an employee on intermittent leave after the employer’s COO allegedly requested that the employee take full-time leave or no leave at all. The court, unable to cleanly separate the employee’s performance issues from her approved leave, denied the employer summary judgment. However, the court also offered a helpful reminder on the interplay between the Americans with Disabilities Act (ADA) and intermittent FMLA, holding that an employee cannot generally obtain intermittent leave as a reasonable accommodation because, by taking such leave, she cannot perform the essential functions of her job.

Background: Intermittent Leave Under the FMLA and ADA

The Family Medical Leave Act (FMLA) protects an employee’s right to take intermittent leave when medically necessary. Intermittent leave broadly refers to leave which is taken in separate blocks of time for a single qualifying reason. Under the FMLA, employees may take intermittent leave, like full-time leave, for up to 12 weeks in a one-year period. While employees seeking and taking intermittent leave must provide notice and work with employers to minimize workplace disruptions, intermittent leave often causes headaches for employers needing to make up for inconsistent employee absences.

Employees also occasionally request intermittent leave as a reasonable accommodation under the Americans with Disabilities Act (ADA). To obtain a reasonable accommodation, employees must be able to perform the essential functions of the job with or without an accommodation. Because most jobs cannot be performed on a part-time basis, employees requesting leave as an accommodation are generally deemed not “qualified” under the ADA.

The court’s holding in Kalahar reaffirms each of these general rules.

Case Holding

The plaintiff, Kayce Kalahar (“Kalahar”), worked as a project manager for a Priority, Inc. (“Priority”), a Wisconsin-based company that designed and manufactured signs for companies. Kalahar requested intermittent FMLA leave due to mental health issues. Additionally, during this time, Kalahar began working from home part-time. Priority approved each request for leave over the next few months. However, during this time, Priority began receiving complaints from customers and coworkers about Kalahar’s lack of availability and poor work performance.

After Kalahar missed work without an excuse, Priority scheduled a meeting to discuss customer complaints and Kalahar’s absence. During the meeting, Priority’s COO told Kalahar she needed to work from the office full-time and allegedly told Kalahar she either needed to take full-time leave or come back to work full-time. Thereafter, Kalahar took (and Priority approved) intermittent FMLA leave. Kalahar did not allege Priority denied any of her leave requests; however, she did allege Priority ignored some of her requests. Kalahar’s performance issues continued, and Priority ultimately terminated Kalahar.

Kalahar brought claims under the FMLA for interference and retaliation, and under the ADA for failure to accommodate. On Kalahar’s claim that Priority interfered with her right to FMLA leave, the court held that the COO’s single comment—allegedly telling Kalahar to take full-time leave or come back to work full time—created a fact dispute as to whether Priority unlawfully interfered. The court was unconvinced by the fact that Priority never expressly denied Kalahar leave, holding that the fact Priority allegedly ignored a few requests was sufficient to allow the claim to survive summary judgment.

The court also denied summary judgment on Kalahar’s retaliation claim, holding that it was reasonable to conclude that Priority’s reason for terminating Kalahar (poor performance) was causally related to her FMLA leave. A large portion of Kalahar’s performance issues were related to her absences, and Priority did not have other employees cover for these absences. Thus, the court held that “if the performance problems that supposedly justified Kalahar’s termination were the direct result of her using FMLA leave, then allowing Priority to terminate her for those reasons would render her FMLA rights ‘illusory.’”

As to Kalahar’s ADA claim, the Court noted “it is awkward to describe ‘intermittent FMLA’ as a potential reasonable accommodation” because the FMLA already protects an employee’s right to take such leave. Additionally, to obtain an accommodation under the ADA, “the employee must be able to perform the essential functions of the position, and an inability to do so would prevent the employee from becoming a ‘qualified individual.’” Accordingly, because Kalahar’s leave would prevent her from performing her essential job functions, she was not entitled to take intermittent leave as a reasonable accommodation.

Bottom Line

Intermittent leave can be a major source of potential legal pitfalls. It is important for employers to create, implement, and follow clear policies regarding employees’ use of intermittent leave. This is particularly true for employees who are working from home. This case provides a good example that when an employee on intermittent leave begins to suffer from performance issues, it is often difficult to untangle these issues from those related to leave.