It’s a Headache: Worker With Intermittent FMLA Leave for Migraines Gets a Trial

Darrell VanDeusen
Darrell VanDeusen

My blog earlier this week noted that the FMLA is 26 years old.  Yet, is it still – in some cases – difficult to apply in a balanced way.  Handling an employee’s use of unexpected intermittent FMLA leave is about the hardest issue an employer faces under this law.   And, to prove my point, let’s take a look at Dyer v. Ventra Sandusky, LLC, 2019 U.S. App. LEXIS 23678 (6th Cir.  Aug. 8, 2019).

At issue here was the employer’s application of a collectively bargained no-fault attendance policy that assigned points for employee absences.   An absence got you between 0.5 and 1.5 points, depending on the circumstances.  Appropriately, no points were given for an FMLA covered absence.  Employees were progressively disciplined as they accumulated points.  Termination would occur after an employee had 11 or more points.

Employees could reduce their point accumulation by one point with perfect attendance for 30 days.  Certain types of time off (a planned vacation day, for example) wouldn’t interrupt the count toward 30 days of perfect attendance; the taking of FMLA leave and some other forms of leave would reset the clock. Treating FMLA leave the same as other forms of leave is permissible.

So, Mr. Dyer had migraines.  He would have to take unexpected intermittent FMLA leave when this occurred – and it occurred, according to the court, many times a month.  The company’s policy, claimed Dyer, meant that his legitimate use of FMLA leave kept him from being able to get his 30 days of perfect attendance.  He was fired after accruing a dozen points.

This did not trouble the trial court, which granted summary judgment for the company on Dyer’s FMLA interference claim.  On appeal, however, a unanimous Sixth Circuit panel was less sanguine about the issue.  Judge Merritt wrote that “[r]esetting Dyer’s perfect-attendance clock every time he took FMLA leave effectively denied him the flexibility of the no-fault attendance policy that every other employee not taking FMLA leave enjoyed.”  There was also a factual question about whether the company actually treated some other forms of leave the same way.

I apologize on behalf of Congress and the DOL for writing a law and regulations that are sometimes, at best, challenging to apply.  Here, the company did what seemed to be an acceptable application of the law’s requirements – it claimed that it didn’t single out FMLA leave for worse treatment.  The union representing employees (including Dyer) and the company had collectively bargained the no-fault attendance policy.  And the trial court agreed with the company’s interpretation.

Despite all of this, all three judges on the appellate panel decided that Dyer’s case should get to a jury.  The take away here is a pretty easy one:  If FMLA leave is at issue, an employee should not be penalized in any way for using it legitimately.

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