Family And Medical Leave Act (FMLA): Leave Lasted More Than 12 Weeks, No Right To Sue

Legal Eagle Eye Newsletter for the Nursing Profession

August 1998

Quick Summary: After twelve weeks on leave an employee must be ready and able to return to work.

An eligible employee is entitled to twelve workweeks of leave during any twelve month period because of a serious health condition that makes the employee unable to perform the functions of the employee’s position.

This does not mean the employee must be so incapacitated that the employee is unable to work at all. The law allows necessary absence from work to receive medical treatment during which time the employee would be temporarily unable to perform the functions of the employee’s position.

Congress intended the Family and Medical Leave Act to apply not only to persons currently unable to perform essential job functions but also to those who will be unable to perform the essential functions of their jobs once treatment has been administered. UNITED STATES DISTRICT COURT, MASSACHUSETTS, 1998.

The hospital MRI technician in this case was terminated fifteen weeks after starting a medical leave of absence to undergo restorative surgery on her shoulder, because her physician at that time was not able to certify her as medically fit to return to her position without restrictions.

She sued her former employer for violation of the Family and Medical Leave Act (FMLA), and for gender discrimination.

The U.S. District Court for the District of Massachusetts dismissed the FMLA portion of the case. The court ruled the employee did have a serious medical condition and did qualify for twelve weeks leave. But she was entitled only to twelve weeks leave, and as far as the FMLA was concerned, could be terminated if she had to stay out on leave longer than twelve weeks.

Nevertheless, the hospital apparently had given a male employee in the same job classification fifteen weeks leave for a back condition. That fact required the court to rule the case should go forward as a valid gender discrimination claim.

The employee had some discretion when to schedule her surgery. Her doctor indicated in was medically necessary sometime within five years, or the shoulder condition would become disabling. As long as the surgery was medically necessary in the employee’s physician’s opinion, and the employee would be unable to work while recuperating from surgery, it qualified as a "serious health condition" under the FMLA.

According to the court, however, the FMLA only mandates twelve weeks leave. Even if an employer gives an employee more leave than that, then goes back on that decision, there is no right to sue the employer under the FMLA if leave has gone beyond twelve weeks, the court ruled. Santos v. Health, 996 F. Supp. 87 (D. Mass., 1998).