On March 20, 2014, the 11th Circuit held that the Family and Medical Leave Act (FMLA) did not protect a former employee’s request for vacation allegedly related to his chronic depression. The Court held that the employer was entitled to judgment as a matter of law because the leave requested was not for a “period of incapacity,” nor was the leave “treatment for a period of incapacity” within the meaning of 29 C.F.R. § 825.115(c). The court also significantly ruled that the interference and retaliation provisions of the FMLA were not triggered by a “potentially qualifying” request for leave — the employee must instead actually qualify for the leave in order for there to be protection. The 11th Circuit, accordingly, reversed the employee’s prior jury verdict for interference with FMLA rights and retaliation.
Background
In Hurley v. Kent of Naples, Inc., et al., No. 13-10298 (11th Cir. Mar. 20, 2014), the facts giving rise to the claims at issue first began when the employer denied an employee’s written request for 11 weeks of intermittent vacation time, which the employee planned to take over a two-year period. The employee’s email request to the company’s CEO simply stated, “Attached is my vacation schedule going forward. The dates are subject to change.”
Following the vacation leave denial, the employee rudely responded that the “email below, which regards my upcoming vacation schedule, was not a request it was a schedule.” The employee claimed that he had been “advised by medical/health professionals that my need to avail myself of vacation time that I have earned is no longer optional.” At the same time, the employee also accused the CEO of not paying him for an overdue bonus and for privately ridiculing his ideas.
Although not mentioned in the email, the employee had been suffering from depression and anxiety, which in turn produced panic attacks. Also, when the CEO and the employee met the next day, it was disputed whether the employee ever referenced his underlying medical condition. What is, however, undisputed is that at the conclusion of the meeting, the employer terminated the employee for insubordinate behavior and poor performance. Further, after his termination, the employee visited his doctor, who completed an FMLA form for the employee, noting the employee’s depression.
The employee brought claims for interference with his FMLA rights and for retaliation. At trial, the employer moved for judgment as a matter of law, but the motion was denied. With respect to the interference claim, the jury decided that the employee was entitled to an FMLA benefit that the employer denied. However, with regard to the retaliation claim, the jury decided that the employee’s request for leave was not a substantial or motivating factor in his termination. The jury also awarded $200,000 for actual monetary loss (even though the only loss flowed from the employee’s termination, which the jury had ruled was not motivated by the employee’s request for leave).
Decision
On appeal, the 11th Circuit ruled that to state a claim for interference with FMLA rights or for retaliation, the employee must first show that he or she qualified for FMLA leave. The court rejected the employee’s arguments that he needed only to “potentially qualify” for leave. In doing so, the court relied on the FMLA’s text, which provides a cause of action against employers who deny the exercise of, or the attempt to exercise, any “right” (not potential right) provided under 29 U.S.C. § 2615(a)(1). The court also reasoned that if “potentially qualifying” leave were covered, notice of almost any type of leave could trigger the FMLA’s protections — and corresponding claims.
The court acknowledged that the employee’s depression constituted a serious health condition within the meaning of 29 C.F.R. § 825.115 and that the requested leave would have benefited the employee’s condition. However, importantly, the employee admitted that his requested vacation leave was:
- Not for a period of incapacity.
- Not to undergo treatment related to such incapacity.
- Picked by the employee and his wife without any input from a healthcare professional, with many days selected to overlap with holiday weekends.
In addition, the employee’s own doctor testified that even though he had completed the FMLA form, he (a) did not mean to imply that the employee needed medical leave for the dates in the vacation schedule; (b) had never even seen the schedule submitted; and (c) would not have certified FMLA leave for those future dates regardless. Therefore, despite the employee’s underlying serious health condition, the court held that his leave request was not FMLA-protected.
Last, the employee also raised an interesting argument that whether the leave was protected should be governed by what the employer knew at the time of its decisions — not by information discovered during litigation. However, the Court rejected that argument, noting that the employer’s motivation was not at issue. Rather, with respect to the employee’s FMLA interference claim, the issue was whether the employee qualified for the leave in and of itself.
Employer Take-Aways
Among the trickiest issues employers face is whether they must grant leave to employees who are ill. Keep in mind:
- Federal law does not protect all doctors’ orders to employees.
- Employers can create a checklist of questions to ask employees who request FMLA leave, including whether the illness has rendered the employee incapacitated now or in the past (which is not the only consideration).
- When litigating cases, never take for granted that an employee has established the essential elements of his or her prima facie case.
- If the employer’s motivation is not at issue in litigation, then after-acquired evidence may be used to rebut the employee’s prima facie case in some circumstances.
For questions regarding the Hurley decision or assistance in reviewing, revising or drafting FMLA leave review procedures, please contact the authors or any other members of the McGuireWoods labor and employment group.