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Employee Must Renew Request for Intermittent FMLA Leave Annually

On Behalf of | Jul 18, 2018 |

The U.S. District Court for the Middle District of Pennsylvania has ruled, in Feistl v. Luzerne Intermediate Unit, that an employee on intermittent leave is not protected by the Family and Medical Leave Act (“FMLA”) unless the leave is requested and approved annually.


An employee with back problems and other conditions requested and received intermittent leave under the FMLA. However, despite the leave, her performance began to decline. Her intermittent leave totaled 14.75 days during the first 12 months but she also took several unauthorized days of leave. She did not reapply for FMLA leave and was terminated after the end of the twelve-month period when she took additional leave.

She sued the employer for, among other things, interference with, and retaliation against, her exercise of FMLA rights.

The employer argued that it was entitled to a favorable ruling on the employee’s FMLA claims because, even though she had not taken her full 12 weeks’ leave, her right to FMLA leave had expired after one year when she did not request additional FMLA leave for the next twelve-month period. After that, the employer said, she was taking leave without authorization. The employee, on the other hand, argued that the employer did not provide any authority for the proposition that her leave “simply ‘expires’ upon the one-year anniversary of its commencement.”


Among other things, FMLA entitles eligible employees to up to 12 weeks’ leave: for one’s own serious health condition; to care for a seriously ill or injured spouse or dependent; for the birth adoption or placement of a child; or to deal with “exigencies” related to their spouse’s military deployment. It also provides employees with up to 26 weeks’ leave to care for a spouse who has a military service related illness or injury.

Intermittent leave may be taken periodically and may consist of separate blocks of leave for a single illness or injury. Intermittent leave can vary in time from an hour or more to blocks lasting several weeks. In tracking how much FMLA leave an employee takes on an intermittent basis, an employer can use the smallest period of time used by its payroll system to account for any absence.

In general, an employee must notify his or her employer, in advance if possible, about the need for regular or intermittent FMLA leave.

Court Ruling

The court ruled that, when intermittent leave is taken, an employee is entitled to take leave at different times during the year without continually having to re-qualify for such leave and the leave may be taken over such periods in an amount equal to the FMLA’s twelve- week yearly limit. However, prior court decisions and a Department of Labor Opinion letter say that an employee seeking additional FMLA leave after the expiration of the twelve-month period following the initial exercise of leave must request and re-qualify for FMLA leave. In this case, the employee was granted and initially used her intermittent leave beginning on January 22, 2013. Thus, her leave expired 12 months from that date, on January 21, 2014, and then she was required to request, and re-qualify for, another twelve-month period of intermittent leave. In this case, although the employee was informed that her FMLA leave would expire on January 21, 2014, rather than requesting additional FMLA leave, she continued to take unexcused leave.

The court stated that FMLA leave, even if only intermittently taken, “cannot be taken ‘forever’ on the basis of one leave request.” It therefore ruled in favor of the employer.

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