South-Western Legal Studies in Business

FMLA Leave Requires Incapacity as Defined by Law, Not Employee's Opinion
Description Appeals court held that an employee who was fired for missing too much work after she suffered a wrist and ankle injury did not have a suit against her employer for a violation of the FMLA. The employee must be incapacitated as the law defines that medical condition; one cannot declare oneself to be incapacitated.
Topic Employment Law
Key Words Family and Medical Leave Act; Incapacity; Interference; Retaliation
C A S E   S U M M A R Y
Facts Russell worked for several years at North Broward Hospital. She had been reprimanded several times for unscheduled absences and was on notice that she could be terminated if more absences occurred. She fell at work, breaking her elbow and injuring her ankle. After treatment, her doctor told her she could return to work but could not use her injured arm. After that, the amount of time she worked varied from day to day as she complained of too much pain to be able to work. She missed several days without calling in to say she would not be at work. She was fired and consequently sued for violation of the Family and Medical Leave Act (FMLA). The jury held for the hospital. Russell appealed.

Affirmed. There are two types of claims made by employees under FMLA. One is for interference with FMLA rights, where the employee shows that he or she was entitled to the benefit denied. The other is for retaliation for exercising FMLA rights, where the employee has a stronger burden of showing that the employer engaged in discriminatory action or retaliation. Here, Russell failed to show that her injury was a chronic serious health condition that required more than three consecutive days of incapacity to qualify for FMLA leave. Such a "serious health condition is one requiring "continuing treatment by a health care provider." Just because an employee takes more than three consecutive days and asserts it is for health reasons does not mean that there is an incapacity recognized under the FMLA.

Citation Russell v. North Broward Hospital, --- F.3d --- (2003 WL 22254676, 11th Cir., 2003)

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