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Three-Day FMLA incapacity can span regular days off

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in FMLA Guidelines,Human Resources

Employees who claim they qualify for FMLA leave because of a short illness have to show that they went to a doctor and were incapacitated for three days. But the three days don’t have to be workdays—they can include days off.

For example, employees who can show they couldn’t come to work on Friday due to illness, and couldn’t go about everyday tasks at home over the weekend, may meet the three-day test.

Recent case: Cherie Lawson-Brewster, a school custodian, had a lengthy history of calling in sick. When she had worked long enough to qualify for FMLA leave, she began taking weeks off for various ailments.

Finally, the school system fired her for missing work. She sued, arguing that the FMLA covered the time she missed work. But all she could prove was that she went to a doctor after already calling in sick for several days.

Lawson-Brewster’s employer wanted proof she couldn’t go about her regular daily activities on the weekend. Otherwise, it argued, she wasn’t incapacitated for three consecutive days. She didn’t have any proof, and the court tossed out Lawson-Brewster’s FMLA claim. Because she wasn’t entitled to FMLA leave, her discharge didn’t violate the FMLA. (Lawson-Brewster v. River Valley School District, No. 4:06-CV-58, WD MI, 2008)

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