Managing long-term intermittent leave has long been one of the central problems for employers administering FMLA leave. Particularly problematic is the employee who presents a certification suggesting that he or she will need unscheduled leave with little or no notice to the employer over a period of months or years based upon self-diagnosed, unverifiable symptoms such as pain or fatigue. A recent decision by the 8th Circuit Court of Appeals suggests that, at least in some cases, such a leave request need not be granted because the need for frequent, unscheduled, unpredictable leave over an extended period of time can render an employee unqualified for duty. Wisbey v. City of Lincoln, Neb.

The Facts

Charlene Wisbey worked as an emergency dispatcher for the City of Lincoln, Nebraska. Due to the nature of her position, the City expected her to “function accurately while working under considerable pressure” and to “think and act quickly and calmly in emergency situations.”

From January through February 2007, Wisbey used a significant amount of sick leave due to a respiratory infection. As Wisbey had already exhausted her sick leave, the City issued her a written warning for excessive absences and recommended that she apply for intermittent FMLA leave. In February 2007, Wisbey took that advice, and submitted an application for intermittent FMLA leave based upon depression and anxiety, stating in her application that she had a serious health condition that rendered her “unable to perform the essential functions of her job. She submitted a medical certification from her physician, stating that she suffered from recurring depression and anxiety, which interfered with her sleep, energy level, motivation, and concentration. The doctor stated that she would require intermittent leave “over the next 6 months or longer.” He left blank the “anticipated return to work date.”

In light of the certification, the City questioned whether Wisbey was able to adequately perform her job as an emergency dispatcher. The City scheduled Wisbey for a fitness for duty examination with a psychiatrist, Dr. Chesen. Dr. Chesen submitted a three-page report of his findings, stating that Wisbey suffered from “chronic relapsing depression” that “intermittently interferes with her ability to function at full capacity at work vis-a-vis tiredness,” and that she was not “fit for duty as described in her job description, especially as related to tiredness, her ability to concentrate and her ongoing propensity to likely miss work.”

The City subsequently placed Wisbey on administrative leave with pay and scheduled a Personnel Board hearing. At the hearing, Wisbey testified that her fatigue did not interfere with her work, because she stayed home when she felt tired. Following the hearing, the City terminated Wisbey’s employment.

The Lawsuit

Wisbey filed suit against the City in state court, and the City removed her case to the U.S. District Court for the District of Nebraska. In her Complaint, Wisbey alleged that the City violated the ADA and FMLA by terminating her employment. The District Court granted summary judgment for the City, and Wisbey appealed.

Affirming, the Court of Appeals rejected Wisbey’s ADA claim, finding that she “was terminated because she was not ‘fit for duty,’ as reported by Dr. Chesen, and not based on any myths or stereotypes about being disabled.”

With respect to the FMLA, the Court explained that the Act supports two distinct types of claim, for “interference” and “retaliation.” To establish an interference claim, an employee need only show that an employer denied some benefit to which the employee was entitled under the FMLA. The court held that Wisbey could not maintain an interference claim because she was never denied any FMLA leave. Going further, the court held that even if Wisbey’s FMLA requests had been denied, the FMLA did not give her the right to FMLA leave because she requested “intermitent leave” for “six months or longer.” Quoting a 2005 decision in Spangler v. Fed. Home Loan Banke of Des Moines, the Court stated:

Even had Wisbey’s FMLA requests been denied, the FMLA does not provide an employee suffering from depression with a right to unscheduled and unpredictable, but cumulatively substantial absences or a right to take unscheduled leave at a moment’s notice for the rest of her career. On the contrary, such a situation implies that she is not qualified for a position where reliable attendance is a bona fide occupational qualification….

As for her retaliation claim, the Court again found that the City discharged Wisbey not because she exercised any rights under the FMLA, but because she was unfit for duty.

Insights for Employers

This case should come as a breath of fresh air to employers who have dealt with employees who treat long-term intermittent FMLA leave as an invitation to skip work whenever they feel like it, without notice or further explanation. However, some may argue that the 8th Circuit went too far in suggesting that an employee has no right to FMLA leave where she requests “intermittent leave” for a period of “six months or longer.” Indeed, the FMLA plainly allows for intermittent leave over extended periods of time

What employers can take away from Wisbey is that, particularly for safety-sensitive positions and jobs where regular attendance is a crucial requirement, there may be situations where an employee’s serious health condition renders the employee unfit for duty, regardless of the availability of leave under the FMLA. In such cases, it may be permissible for an employer to terminate an employee’s employment without first allowing an employee to exhaust all available FMLA leave. However, employers should be cautious about exercising that option, as other courts faced with different factual scenarios may be less friendly to the unfit-for-duty argument than the 8th Circuit was in Wisbey.