HR won't like this new ruling: FMLA can change employee's job … permanently

When this worker asked his employer if he could take intermittent FMLA leave in such a way that it would permanently change the nature of his job, the employer denied his request. But then a court stepped in and said the employer didn’t have the right to do that — and you won’t like the court’s reasoning.

Meet Samuel Santiago. He was a material storage supervisor for the Connecticut Department of Transportation (DOT). His position required that he work considerable overtime during snowy months.
Santiago also suffered from cluster headaches, which are far more severe than migraine headaches.
His doctor determined that working overtime was the main trigger for his headaches, and Santiago submitted a medical certification that requested something rather unusual: He requested to take intermittent FMLA leave whenever he had to work overtime.

Would medical leave cover his OT?

Naturally, the first question you’d likely have after such a request would be: Would intermittent FMLA even cover all of his overtime?
The answer to that was yes. Since the FMLA allows intermittent leave to be broken into hourly increments, Santiago essentially had 480 hours of leave to use throughout the year (12 weeks x 5 days per week x 8 hours per day = 480 hours). That amounts to 9.2 hours per week or 1.8 hours per day.
Since Santiago didn’t have to work overtime year-round, it was determined his leave allotment would be sufficient to relieve him from all of the overtime required for his position.

‘Retire … or else’

Understandably, the DOT had some reservations about Santiago’s request.
For starters, the DOT said the overtime restriction meant that Santiago could no longer perform the essential functions of his job — and since no other positions were available that were less strenuous, the only two options available to Santiago were for him to apply for disability retirement or be terminated outright.
But that wasn’t all. The DOT also said that since Santiago’s FMLA certification contained no information about ongoing medical treatment, he didn’t qualify for intermittent leave to begin with. The DOT said he couldn’t simply seek leave for an incapacity that may or may not occur in the future.
After presenting him with the options to either retire or be terminated, Santiago sued. He claimed the DOT had interfered with his FMLA rights.
The DOT fought to get the case thrown out on summary judgment, using the arguments that Santiago was no longer qualified to perform his job and that he didn’t qualify for FMLA protections.

The verdict

The court shot holes in both of the DOT’s arguments, refused to throw the case out and sent Santiago’s case to go before a jury.
It ruled that the FMLA is different from the ADA in that an inability to perform essential job functions plays no role in determining whether or not an employee qualifies for FMLA leave.
So, in essence, it ruled no matter the hardship placed on the employer, as long as the employee has a qualifying medical condition — and meets the other requirements to be qualified for FMLA leave (having worked 12 months, 1,250 hours, etc.) — an employee can’t be denied FMLA leave … period.
This is a painful reminder to employers of the hardships they sometimes have to endure to stay in compliance with the law.
But what about the DOT’s argument that Santiago couldn’t request leave for an incapacity that may or may not occur in the future? The court said the FMLA regulations specifically spell out at least one instance in which employees can take FMLA leave to prevent the onset of an illness — thus invalidating the DOT’s argument.
Here’s the excerpt from the law:
“For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack or because the employee’s health care provider has advised the employee to stay home when the pollen count exceeds a certain level.”
Bottom line: Much to employers’ chagrin, the court’s ruling points the way for intermittent FMLA leave to be used to alter a workers’ job permanently, assuming the individual’s leave allotment would never run out.
Cite: Santiago v. Department of Transportation (PDF)