The 8th Circuit has issued a pro-employer ruling for employers struggling with intermittent leave issues. An emergency dispatcher who suffered from depression and anxiety obtained a certification from her doctor that she would need to take time off from work intermittently over the next six months or longer. No anticipated return to work date was indicated. The doctor further indicated that the dispatcher’s concentration and motivation could be affected. The City of Lincoln, concerned with her ability to adequately perform her duties in an emergency situation, and to obtain accurate and complete information, sent her to a psychologist who determined she was unfit for duty. She was fired, and then filed an FMLA claim. According to the lower court, 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 his/her career. On the contrary, such a situation implies that an employee is not qualified for a position where reliable attendance is a bona fide requirement. As the FMLA regulations clearly permit intermittent leave, applications of this rule could be limited to those jobs that are safety sensitive, or regular attendance is clearly an essential function. Wisbey v. City of Lincoln (8th Cir. 2010)