posted on Friday, May 05, 2006 2:42 PM
by
Lou Michels
A Geographic Approach for Intermittent Leave
The Family Medical Leave Act, one of my favorite topics, provides time off from work for an employee to deal with a serious medical condition. A recent 5th Circuit decision points out that the FMLA provides for time off from work, and does not apply when an employee simply requests time off at work.
An employee being treated for diabetes developed a medical condition requiring frequent and unscheduled trips of varying duration to the bathroom while at work. He creatively argued that his employer's failure to give him FMLA time for these bathroom breaks was a violation of the statute. The 5th Circuit flushed this argument, finding first that the employee did not have a serious medical condition because he was not "incapacitated" for work, but instead was able to go to work on a regular basis. In addition, the court did not accept the claim that the employee was asking for intermittent leave away from his place of work, but merely periodic time away from a desk during the work day. As the court put it, the employee, "is asking for unfettered permission, while at work, to take necessary restroom breaks." The court held that this did not constitute intermittent leave as defined or contemplated by the FMLA. I wonder how this decision changes if the employee had gone out to use a bathroom in another building.
The employee also hurt his case by refusing to cooperate with his employer when it asked for additional medical information in order to validate his request for bathroom time. The court held that the FMLA as a statute requires cooperation from both employer and employee and a failure by the employee to cooperate with the employer's legitimate request prevents the employee from challenging the employer's refusal to certify absences as FMLA qualifying.
Why this case was not brought as an Americans With Disabilities Act ("ADA") case, I don't know. It seems to me that a medical condition requiring someone to make frequent and lengthy visits to the local water closet would at least arguably qualify as a disabling condition that could be accommodated. In any event, the 5th Circuit's logic seems solid in holding that intermittent FMLA leaves are for absences away from the workplace. How far away will be a matter for another appeal.