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The Family and Medical Leave Act (FMLA) was intended to allow “qualified employees” working for covered employers to be permitted unpaid medical leave arising from the employee or the employee’s family’s serious health conditions.  Sometimes, an employee who is terminated for other reasons will claim that the termination was unlawful retaliation for seeking benefits under the FMLA.  Employers who show the medical condition was not a “serious health condition” can prevail against these claims of FMLA retaliation.  Peter Mavrick is Fort Lauderdale employment attorney with extensive experience in defending businesses and their owners against claims alleging employment discrimination, retaliation, and unpaid wages.  The Mavrick Law Firm also defends the interests of employers in Miami, Boca Raton, and Palm Beach.

FMLA provides an employee the right to medical leave “[b]ecause of a serious health condition.” 29 U.S.C. § 2612(a)(1)(D).  Under federal law, employers are not allowed to interfere with “the exercise of or the attempt to exercise” that right to leave. 29 USC § 2615(a)(1). FMLA “prohibits an employer from retaliating against an employee who attempts to exercise any FMLA-created right.” Walker v. Elmore Cty. Bd. of Educ., 379 F.3d 1249 (11th Cir. 2004).  Additionally, “[a]n employer is prohibited from discriminating against employees or prospective employees who have used FMLA leave.” 29 C.F.R. § 825.220(c).

These restrictions, however, do not give employees carte blanche opportunity to receive leave whenever they choose.  Instead, an employee must be eligible for leave, which typically requires that the employee worked at the employer for 12 months and worked at least 1,250 hours.  29 U.S.C. § 2611 (a).  An employee’s request to take FMLA after the time they become eligible is usually protected, but an employee is not protected by requesting leave at a time before their eligibility. Walker v. Elmore County Bd. of Educ., 379 F.3d 1249 (11th Cir. 2004) (“There can be no doubt that the request—made by an ineligible employee for leave that would begin when she would still have been ineligible—is not protected by the FMLA”).

FMLA protection depends on the purpose of the leave.  An employee can take leave because of the birth or adoption of a child, to care for a spouse, child, or parent with a serious health condition, or because a serious health condition “makes the employee unable to perform the functions of the position of such employee.”  29 U.S.C. § 2612 (1)(A)-(D).  Additionally, the FMLA was amended to allow parents who do not have access to childcare as a result of the COVID-19 pandemic and cannot work to have access to FMLA leave.  29 U.S.C. § 2612 (1)(F), 29 U.S.C. § 2620.  A “serious health conditions means an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility; or continuing treatment by a health care provider.”  29 U.S.C.A. § 2611(11).

An employee claiming time because of a health condition or to care for a sick family member must prove that the employee or the family member has a “serious health condition.”  Russell v. N. Broward Hosp., 346 F.3d 1335 (11th Cir. 2003) (“Interference and retaliation claims both require the employee to establish a ‘serious health condition’”);  also Cash v. Smith, 231 F.3d 1301 (11th Cir. 2000) (plaintiff “failed to present evidence that she exercised a protected right under the FMLA” because she did not present evidence of a serious health condition).  Employers need not rely on an employee’s assessment of medical condition at issue, “employers have a statutory right to require an employee requesting FMLA leave to obtain certification that attests to the employee’s eligibility for such leave from a health care provider.”  Cash v. Smith, 231 F.3d 1301 (11th Cir. 2000).

In the recent federal appellate case, Martin v. Fin. Asset Mgmt. Sys., Inc., 17-14488, 2020 WL 2478868 (11th Cir. May 14, 2020), the Eleventh Circuit Court of Appeals considered whether an employee properly sought medical leave based upon the assessment of a licensed professional counselor.  The employee had been diagnosed by the professional counselor with “adjustment disorder with depressed mood and anxiety.”  The employer recognized that only a “doctor of medicine or osteopathy” or persons authorized by the Department of Labor may be considered “medical providers” under FMLA.  29 U.S.C. § 2611(6).  The employer also pointed out that the counselor had not determined that the employee was “unable to perform” as an employee.  The employee claimed, however, that as a remedial statute, FMLA should be interpreted broadly and the court therefore should ignore these strict requirements.  The federal appellate court in Martin rejected the employee’s argument and instead agreed with the employer. The employee was not qualified for FMLA protection.  The Martin appellate decision explained that “[b]road remedial goals are not an invitation to judicial craftsmanship.”  The employee must be “qualified” to invoke FMLA coverage.

Peter Mavrick is a Fort Lauderdale employment lawyer who represents businesses in defense against FMLA cases and other cases alleging discrimination, retaliation, for allegedly owed wages and benefits in Miami, Boca Raton and Palm Beach.  This article does not serve as a substitute for legal advice tailored to a particular situation.


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