FMLA Employee Eligibility Requirements:
As Clear As Mud

(Published April 27, 2009)

 

Don't be too quick to deny Family and Medical Leave Act (FMLA) leave to an employee over a technicality. Two recent cases show that determining whether an employee is FMLA-eligible and determining what constitutes an FMLA-qualifying serious health condition can be quite tricky.

 

Case #1: An employee was just nine days shy of his one-year anniversary with his company when he submitted a request for FMLA leave to begin three months later. He intended to help care for his prematurely born infant after his fiancée's medical leave ran out. He was fired the same day, for reasons related to his "skill set." The employee filed suit under the FMLA. The company argued that the employee could not file an FMLA claim because he was not FMLA-eligible at the time he requested leave; one of the FMLA's eligibility requirements is that an employee must have worked for the employer for at least 12 total months.

 

The court let the case proceed, based on the FMLA provision that an employee must give their employer 30 days' notice when the need for leave is foreseeable. Said the court: It would be illogical to interpret the notice requirement in a way that would require employees to disclose requests for leave as a convenience to the employer, but then would allow that same employer to retaliate against the employee based on the fact that the employee was just short of becoming eligible. (Reynolds v. Inter-Industry Conference on Auto Collision Repair, N.D.IL, No. 08-2115, 2009)

 

Lesson learned: Think twice about taking an adverse action against any employee for requesting FMLA leave. Firing an ineligible employee who has requested FMLA leave could be prohibited if the employee will be eligible at the time the leave is scheduled to begin.

 

Case #2: An employee called his supervisor to notify him that he would not be able to make his shift because his son's eye had been cut and was bleeding, so he had to drive him to the emergency room. Diagnosed as having a possible ruptured globe, the son was sent to see a specialist at a different hospital. The specialist concluded that the son had a laceration, but no ruptured globe.

 

The attendance point the employee accrued for missing work that day put him over the company's policy limit, so he was fired. He sued for employment discrimination and retaliation, claiming that he should not have received the point because the absence qualified under the FMLA, which allows eligible employees to take leave to care for a family member with a serious health condition.

 

The company filed for summary judgment, arguing that the son's injury turned out to be minor and so did not qualify as a serious health condition under the FMLA. To be a serious health condition under the FMLA, it argued, the child would've had to have been incapacitated for a period of more than three days and treated two or more times, or treated at least once resulting in a regimen of continuing treatment.

 

The court sided with the employee and let the case proceed. The court noted that at the time the employee requested leave, the doctors believed that the boy might have a serious health condition, in that the injury "would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment." Also, under FMLA regulations, "treatment" includes examinations to determine whether a serious health condition exists and evaluations of the condition. The hospital examinations fell within the meaning of treatment for a serious health condition under the FMLA. (Johnson v. Kmart, et al., E.D.MI, No. 07-14393, 2009)

 

Lesson learned: An employee could be protected under the FMLA if they take emergency leave for a condition that's initially diagnosed to be a possible serious health condition, even if it turns out that the condition is not serious. So, when you assess FMLA eligibility, consider the diagnosis at the time the leave request was made.

 

Related Topic(s): Benefits/FMLA - Family and Medical Leave Act, Leave/FMLA – Family and Medical Leave Act