An employee asked his boss for 11 weeks of vacation over a two-year period. While he did not mention that he was suffering from depression and anxiety, he told his boss that his “medical/health professionals” had advised him that taking this vacation time was a “necessity.” He was fired the next day for “insubordinate behavior and poor performance.”  A week later, the employee’s physician filled out an FMLA form certifying that the executive suffered from depression, although the doctor stated that he could not determine the frequency or duration of any incapacity.

 

While the employee did not allege that he was unable to work or was incapacitated, he nonetheless sued the employer under the Family Medical Leave Act (“FMLA”), claiming that he had been fired for exercising his right to FMLA leave. A jury awarded the employee more than $750,000. The employer appealed, asserting, as it had in the trial court, that the employee did not qualify for FMLA leave as he was neither unable to work nor incapacitated. The employee argued that he could maintain an FMLA action despite not actually qualifying for leave because he only had to “potentially qualify” for FMLA leave to do so.

 

The federal court of appeals in Atlanta disagreed with the employee, ruling in Hurley v. Kent of Naples, Inc., 2014 U .S. App. LEXIS 5259 (11th Cir. 2014), that an employee must actually (and not potentially) qualify for FMLA leave in order to assert an interference or retaliation claim. The FMLA, the court explained, does not extend its protections to a leave that may be medically beneficial – but not required – simply because the employee has a chronic health condition.