Employer may face FMLA liability where it forced continuous leave on employee


The employee here requested intermittent leave under the Family and Medical Leave Act (FMLA) but was instead forced to go out on continuous leave. Under the FMLA, “intermittent leave” is taking leave in separate blocks of time for a single qualifying reason. Reducing the employee’s usual weekly or daily work schedule can also constitute intermittent leave. In contrast, “continuous leave” is taking the entire block of leave consecutively. This case serves as a reminder that the employer cannot dictate which form of leave an employee can take.


The employer operated an automotive component production facility. The employee worked as a full-time “Materials Handler” for the employer. The essential functions of the employee’s job included physically moving objects exceeding 10 pounds around the employer’s facility in addition to operating a forklift.

The employee suffered from gout, arthritis, and hypertension. The employee used intermittent FMLA leave in 2014 and 2015 in response to “flare ups” of these conditions. In the medical documentation associated with the employee’s FMLA requests, the employee’s physician provided the following restrictions: the employee could not lift above 10 pounds, push, pull, manipulate, or bend. It was unclear from the documentation whether this restriction applied only when the employee was experiencing a “flare up” or if it applied at all times.

In 2016, the employee’s recertification for intermittent FMLA leave was denied and the employee was instead put on continuous FMLA leave. A human resources representative employed by the employer made the decision to deny the employee’s request for intermittent leave. In interpreting the information provided by the employee’s physician, the human resources representative did not believe that the employee’s physician-imposed restrictions applied only during flare-ups. The employee was told he could return to work if his physician lifted the restrictions. The physician neither lifted the restriction nor clarified if the restriction applied only during the “flare ups.” The human representative also interpreted the information provided by the employee’s physician to be both a request for intermittent FMLA leave and a request for continuous FMLA leave because the documentation indicated that the employee could be incapacitated for “continuous” periods of time.

Being out on unpaid, continuous FMLA leave caused the employee financial hardship. After just over a month of leave, the employed resigned from employment with the employer and later filed suit. The employee brought four claims, each premised on the idea that the employer’s conduct here was illegal because the employer forced him to go on continuous FMLA leave rather than the intermittent leave that he requested. Only two claims will be discussed in this article: first, that the employer failed to reasonably accommodate the employee under the Americans with Disabilities Act (ADA) by failing to provide the reasonable accommodation of intermittent FMLA when requested; and second, the employee claimed the employer interfered with the employee’s right to intermittent FMLA leave by denying his request for intermittent FMLA leave.

Both parties requested that the court enter judgment in their favor prior to any trial in the matter. The court’s decision ruling on those requests by the parties is the subject of this article.

Court’s Decision

In first analyzing the employee’s ADA claim, the court noted that covered employers must provide reasonable accommodation to disabled employees who are qualified (i.e. can perform the essential functions of their jobs with or without reasonable accommodation). The court ruled that a jury would have to decide the question of whether the employee was qualified. The court based this aspect of its ruling on the fact that the employee worked in the same position in 2014 and 2015, with the same physical ailments, and successfully utilized intermittent FMLA leave without any apparent issues. The court also found that putting the employee on continuous FMLA leave was not a reasonable accommodation under the circumstances.

Turning to the next claim, the court considered whether the employer’s conduct here constituted FMLA interference. The court ruled that the jury would need to answer the question of whether the physician-imposed restrictions prevented the employee from working as a “Materials Handler” for the employer. The court held that the employer did not interfere with the employee’s rights if it correctly determined that the employee’s limitations required continuous leave, but did note, however, that the employer could not simply substitute continuous leave for intermittent leave and avoid running afoul of the FMLA.

The court accordingly allowed the case to proceed on the path towards trial.


This case is a good one for employers to be familiar with for several reasons. First, the case shows a situation in which there is both ADA and FMLA coverage. Second, the case makes clear that an employer cannot simply force an employee to go out on continuous FMLA leave in response to the employee’s request for intermittent leave.

While the employee’s request for summary judgment was denied here, this was not a victory for the employer. The fact this court directed the case to trial was a costly outcome for the employer. Trials are extremely expensive. As a result, many employers choose to settle cases that would otherwise have to be tried in order to not only avoid the costs of trial but also to avoid the risk of having to pay what could be a large judgment if unsuccessful at trial. Indeed, court records show that the parties here reached a settlement a little over a month after the court issued its decision. 

Situations like these, in which both the ADA and the FMLA are implicated, present a number of potentially thorny legal issues that must be addressed both individually and collectively. If a corresponding workers’ compensation claim is also present, another set of issues comes into play. When such situations arise, employers should plan and proceed carefully, including consulting with experienced counsel or consultants as necessary.

R. Eddie Wayland is a partner with the law firm of King & Ballow.  You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com.  The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.