Dive Brief:

• A jury must decide whether an executive assistant was fired because she notified her employer of her future need for medical leave or because of her declining performance, the 11th U.S. Circuit Court of Appeals ruled (Munoz v. Selig Enterprises, Inc. No. 18-14606 (11th Cir. Dec. 4, 2020)).
• The employee, who had "a chronic health condition causing flareups," told her bosses she would need future Family and Medical Leave Act (FMLA) leave on an unpredictable basis. Five days later, one of her bosses downloaded monitoring software onto her computer. Three weeks after she began treatment, her bosses issued a memo disciplining her for poor attendance and tardiness, which she alleged were related to her illness. She objected to her punishment and was terminated for performance issues shortly thereafter. Such timing provides evidence of pretext, the 11th Circuit opined in reversing a lower court's ruling of summary judgment in favor of the employer.
• The court also ruled a jury should examine whether Munoz engaged in protected conduct under the FMLA when she "refused to acknowledge, via her signature, that she had received a performance memorandum." Circuit Judge Julie Carnes dissented, pointing out that the court defied precedent in asking a jury if it finds Munoz's belief that her conduct was protected objectively reasonable.

Dive Insight:

The FMLA provides eligible employees unpaid, job-protected leave to use when they can't work due to a serious health condition or when they must care for a family member with a serious health condition. While the statute protects employees who need to take a chunk of time off — say, six weeks to recover from surgery — it also protects those who need leave more frequently and in smaller proportions, such as to deal with migraine headaches, for example. The latter type of leave is called intermittent leave, which often is provided for those with chronic conditions.

Intermittent leave tends to confuse employers, Littler Mendelson Shareholder Jeff Nowak previously told HR Dive. "Managing intermittent leave is perhaps the single biggest problem for employers," Nowak said.

The episodic, unplanned nature of intermittent leave makes misuse and abuse possible, Nowak said; "It's difficult to determine on a day-to-day basis whether employees are actually suffering from a condition." Employers sometimes must make difficult decisions that can be made even more complicated by staffing shortages.