In a recent case under the Family and Medical Leave Act, Breneisen v. Motorola, Inc., No. 10-1982 (7th Cir. Sept. 2, 2011), the Seventh Circuit ruled that an employee could not recover damages from his employer under the FMLA for his supervisor's alleged harassment when the plaintiff returned from a leave of absence, when it then resulted in the exacerbation of his health condition, necessitating another leave of absence.

In Breneisen, a seven-year employee took a 12-week FMLA leave for treatment of gastro esophageal reflux.  He returned to work in a different position (with the same pay and benefits), as his position had been eliminated during his leave.  A few weeks after his return to work, he took a second medical leave for esophageal surgery, this leave lasting more than four months.  When he returned to work, he was allegedly harassed by his supervisor to the point the employee experienced stress, high blood pressure, and stomach reflux, all exacerbating his pre-existing medical condition.  After five months of work, he took a third leave for a total esophagectomy.  The employee never returned and his employment was terminated.

The plaintiff did not make the conventional FMLA retaliation claim - that he was harassed because he had taken an FMLA leave of absence.  Rather, he contended that the supervisor's actions exacerbated his medical condition (which had qualified him for an FMLA leave) such that he could no longer work, had to take the third leave of absence, and lost his job. 

The Seventh Circuit affirmed a summary judgment for the employer on two grounds.  First, no cause of action exists under the FMLA for an employer's alleged exacerbation of a medical condition, even if the condition qualified for an FMLA leave and even if the exacerbation resulted in a leave of absence.  Second, because the plaintiff exhausted his FMLA rights at the end of his first leave of absence, he was no longer covered by the FMLA in the period between his second and third leaves of absence.  As the FMLA no longer applied to him when the alleged harassment occurred, it was not actionable under the FMLA.