Did you ever have an employee tell you that he has medical condition "x," which will require time off at some point in the future? Normally, you tactfully tell him to come back when he actually needs time off, correct?
Such is the case of Pat Hurley, who I blogged about a year ago. You may recall that Pat told his boss that he was depressed and needed time off to deal with the condition. In response, his boss quickly fired him. As I reported, a jury found that the employer violated the FMLA when it denied Pat leave, and the damages and attorney's fees totaled in the range of $1.2 million.
Interestingly, last week, an appellate court overturned the jury's verdict (and resulting damages award), holding that Pat did not qualify for FMLA leave because he gave his employer notice that we would need "potentially qualifying" FMLA leave at some point in the future. Notably, the court pointed out:
"[T]he FMLA does not extend its potent protection to any leave that is medically beneficial simply because the employee has a serious health condition. Rather, the FMLA only protects leave for 'any period of incapacity or treatment for such incapacity due to a chronic serious health condition.' (emphasis in original)
"Potent protection"? I love that term, and I'll have to use it in the future. [Can't you picture someone like Robert Dinero telling one of your employees, "You want some potent protection? I'll give you some potent protection..."] I digress...
Seriously though, as Pat admitted in his trial testimony, he was not seeking leave for a present incapacity. Nor was he seeking leave to obtain treatment for his chronic condition. Rather, he acknowledged he was seeking leave at various points in the future because it would be "beneficial" to deal with his depression. Under the plain reading of the FMLA, he was not entitled to FMLA leave. As the court noted, "giving an employer notice of unqualified leave does not trigger the FMLA's protection . . . [o]therwise, the FMLA would apply to every leave request.”
Put in those terms, the court's decision makes complete sense. Hurley v. Kent of Naples (pdf)
Insights for Employers
There is a fine line between present incapacity and future incapacity, and employers should be sure to clarify if there is any ambiguity. For instance, had Pat told the boss, "I'm dealing with depression and I need to take some time off because I can't function." I simply added a few words to Pat's original request such that the employer, at a minimum, should have inquired further to determine whether Pat needs leave now or in the future as a result of the condition.
As I remind employers in my FMLA training sessions, just because an employee has a chronic condition doesn't necessarily mean they are incapacitated from working. Take, for instance, migraine headaches. I deal with them from time to time, and I simply work through them. I have a chronic condition, but I am not incapacitated from working for my law firm. The same might hold true for other chronic conditions. If an employee seeks FMLA leave for reasons like these, make sure you obtain medical certification to confirm whether the employee actually is incapacitated.
Despite the appellate court's ruling for the employer, FMLA training still is critical. Take the facts here: Pat tells the boss he has depression and needs time off to deal with it. Boss says, "Hurley . . . we've 'had a great run together,' but it's 'time to part ways.'" From an HR standpoint, this is not a best practice response from the boss. Every employee in the leave management process -- whether it's a leave administrator, the HR professional, or the direct and indirect supervisor -- must be trained in this area. Pat's employer may have ultimately prevailed here, but it spent a whole lot of dough paying their attorneys to litigate the case through the appellate court. A couple thousand bucks in effective training to thwart behaviors like these looks really good right now, doesn't it?