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Require use of vacation time if you know FMLA doesn’t apply

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in FMLA Guidelines,Human Resources

Employers don’t have to allow employees to take sick or FMLA time just because they claim minor health problems. If you are certain that an illness or injury doesn’t amount to a serious health condition as defined by the FMLA, then there is no reason to run the time against FMLA or sick time.

You can insist the employee use up available personal or vacation time.

Recent case: Catherine Lundy, a police officer for the town of Brighton, signed up to attend a training session. The two-day course required her to speak during class, which apparently presented a problem for Lundy.

She had both her psychologist and primary-care doctor write letters explaining that she could not attend because she had a neurosis about speaking in public. Instead of attending the training, she took three days off.

The police department—reasoning that nothing in the letters said Lundy had to be absent for medical reasons or that she was unable to perform other essential functions of her job as a police officer—put down her absence as “vacation time.”

Lundy sued, alleging she should have been allowed to take sick time or FMLA leave instead.

The court disagreed. It concluded that Lundy couldn’t show she had a serious health condition under the FMLA. Her absence because of psychological reasons would have been for only the two-day training session—not three days of full incapacity, as the FMLA defines a serious health condition. Plus, she was perfectly able to come to work as a police officer and could have skipped the training to work. (Lundy v. Town of Brighton, et al., No. 06-CV-6280L, WD NY, 2007)

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