#12319 - Employee Leave - Employment Law

Introductory Material, The Right to Leave Time

• The FMLA requires employers with 50 or more employees to grant up to 12 weeks of unpaid leave each year to “covered employees” who have “serious health conditions,” who need to care for a newly born or adopted child, or who need to care for a spouse, child, or parent with a “serious health condition.”

  • A “serious health condition” is “an illness, injury, impairment, or physical or mental condition” that involves “inpatient care” or “continuing treatment by a health care provider”

    • An employer may require that an employee’s request be supported by a certification from the employee’s health provider. The employer may request that such certification contain “appropriate medical facts.”

    • Any “period of incapacity” due to pregnancy is, per regulation, a “serious health condition;” a “period of incapacity” involves “inability to work … or perform other regular daily activities” due to the condition, treatment, or recovery.

  • A “covered employee” is one who has been employed by the employer for at least a year and has worked at least 1,250 hours during the year in question.

  • An employee seeking leave can take such leave either intermittently or on a reduced schedule if medically necessary

  • An employee returning from FMLA leave must be restored to her former job or another position with equivalent pay, benefits, and conditions of employment

    • An employee is not entitled to pay, unless the employee has accrued medical or vacation leave

• The ADA provides that an individual has a right to leave time is such leave is a reasonable accommodation for her disability.

• The Pregnancy Discrimination Act requires an employer to provide pregnancy leave if it provides leave for other types of temporary disabilities.

• The Uniformed Services Employment and Reemployment Rights Act (USERRA) requires an employer to provide leave if an employee reports for military duty.

Whitaker: An employee can prevail on an FMLA claim by showing that (1) she had a serious health condition; (2) it prevented her from performing her job duties; and (3) she gave the employer reasonable notice of her need to take leave and the reasons for doing so.

• Pregnancy per se is not a “serious health condition”

• To establish “incapacity,” an employee must show that she is unable to work for three consecutive calendar days, and must demonstrate that she sought treatment two or more times, or once resulting in a regimen of treatment.

  • These demonstrations are not required in the case of pregnancy

  • Instead, a plaintiff must show that “a health care provider determined that the plaintiff was unable to work” because of her pregnancy. But she need not establish that it was an abnormal pregnancy.

• If working overtime is an “essential function” of an employee’s position, her inability to perform overtime due to a health condition is sufficient to demonstrate that she is “unable to perform the functions of her position” and thus has a “serious health condition” within the meaning of the FMLA

Byrne v. Avon Products: (1) Inability to work for a multi-month period removes a person from the class protected by the ADA; and (2) For the purposes of the FMLA: a worker is excused from providing notice if his unusual behavior provides sufficient notice, or he is unable to do so as the result of his condition.

• Under the ADA, it is unlawful to discriminate against any “qualified individual with a disability because of the disability.” A “qualified individual with a disability” is defined as “an individual with a disability who, with our without reasonable accommodation, can perform the essential functions of the employment position that he holds or desires.” The court holds that a person who is unable to work for a multi-month period is not a “qualified individual” because he is unable to perform the job’s essential tasks; hence, he is not protected by the ADA.

• To qualify for FMLA leave, the employee must provide “such notice as is practicable” to the employer. No notice was provided in this case. However, the concludes that (a) the defendant’s unusual behavior – evincing mental illness – might itself constitute notice; or (b) notice might be excused because “a person unable to give notice is excused from doing so.”

  • Per regulation, “written advance notice may not be required” in the case of a medical emergency requiring leave because of the employee’s own serious health condition.

• A judge would be entitled to require the employee to agree, as a condition of reinstatement, to reclassify unproductive time preceding discharge (due to early manifestations of mental illness) as unpaid leave.

Rogers v. City of San Antonio: Section 4316(c)(1) of USERRA – which provides that “an employee who is absent from employment from military service” is entitled to non-seniority rights equivalent to those provided to similarly situated employees on non-military leave – applies to reservists’ short-term absences from civilian employment as well as to long-term absences due to military service. Hence, it...