The Family and Medical Leave Act provides eligible employees with up to 12 weeks of job-protected leave to deal with, among other things, a serious health condition. What happens, however, when the FMLA leave request is based on planned treatment for a possible future incapacity?

In Hurley v. Kent of Naples, Inc., the plaintiff was a CEO who requested eleven weeks of “FMLA vacation time” to deal with a diagnosed anxiety disorder. The CEO did not claim that he would be incapacitated during those absences, just that he anticipated the need for possible treatment to deal with the medical condition. He was terminated shortly after the request, and a jury awarded him almost $1 million in damages and attorneys’ fees.

The Eleventh Circuit reversed this verdict, dismissing the claim as a matter of law. The court found that in order to claim eligibility for leave under the FMLA, the employee needs to demonstrate that the underlying serious health condition results in an incapacity, that is, an inability to work, or for treatment to prevent such incapacity. In this case, the possibility of such treatment if needed, did not entitle the executive to the requested leave.

The court noted that if the plaintiff’s theory was accepted, employees could in essence convert FMLA leave to unpaid, job-protected vacation time. Employers are entitled upon receiving the employee’s FMLA request, to medical certification demonstrating that the requested leave will be used to receive treatment for, or to recover from the effects of the serious health condition.