Having a chronic serious health condition doesn’t entitle an employee to take leave whenever he chooses.  Even if the leave would be medically beneficial, it has to correspond to a period of incapacity.  In Hurley v. Kent of Naples, Inc., No. 2:10-cv-00334-JES-SPC, 2014 WL 1088293 (11th Cir. Mar. 20, 2014), an employee’s doctor recommended he take vacation, so he informed his employer he would be taking 11 weeks of vacation over a two-year period.  When the employer denied the request, there was a falling out and the employee was ultimately terminated for insubordination and poor performance.  One week after the termination, the employee’s doctor filled out FMLA paperwork citing the employee’s depression, but was unable to determine the duration and frequency of any incapacity.  The employee filed suit claiming he’d been terminated for exercising his FMLA rights.

After inexplicably escaping summary judgment, the employee was awarded $200k in damages despite the jury finding that the leave request didn’t cause his termination.  The Eleventh Circuit reversed finding the vacation request was not a request for FMLA leave.  “Potentially qualifying” for leave isn’t enough to support an FMLA claim.  The employee argued the requested leave was medically necessary, but he was not unable to work and he admitted his wife picked the leave days without input from a doctor.  “Needing a vacation” and being “incapacitated from work” are different concepts.  If the two concepts were the same, many more of us would qualify for FMLA protection!