Court: Three full days of incapacity for serious condition required for intermittent FMLA leave

by on January 13, 2010 · 0 Comment POSTED IN: HR Info Center

Employees may not piece together partial day, intermittent FMLA absences

An employee may not claim that several intermittent FMLA leaves and partial days off caused by a workplace injury amounted to a three-day period of incapacity constituting a “serious health condition” under the Family and Medical Leave Act.

Facts of the case

A hospital employee received several warnings and a three-day suspension for arriving late to work and for poor attendance. Then, she sustained an injury on the job. During a 10-day period just after her injury, she left work early to attend doctors’ appointments a number of times without giving notice.

On at least two occasions she failed to show up at all – also without giving proper notice. Shortly after that she was terminated for excessive absenteeism.

Predictably, the woman sued her former employer. Her claim: The half days, quarter days, and intermittent FMLA days off over the 10-day period should be combined to qualify her for FMLA protection.

But a jury disagreed with her. The law requires “three consecutive days, 72 hours or more” to qualify as a serious health condition. Partial days and intermittent FMLA leaves do not meet the regulation’s requirement.

She did not have special intermittent FMLA rights

In this case, the employee’s dismissal was legitimate. Getting injured on the job didn’t confer any special rights on her. She’d been warned about excessive absenteeism, and she failed to heed the warning. And her intermittent leave wasn’t protected by the FMLA.

Cite: Russell v. North Broward Hospital, U.S. Court of Appeals, 11th Circuit, 02-254676, 10/2/03

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