While the principle seems straightforward, the Eleventh Circuit confirmed in Patrick Hurley v. Kent of Naples, Inc., et al.ss (11th Cir. March 20, 2014) that an employee must request FMLA-qualifying leave to garner the law’s protections. Requesting “potentially qualifying leave” is not enough.

The Eleventh Circuit vacated a lower court’s $1 million judgment in favor of a former employee of a Florida-based security company who claimed he was terminated because he sought leave to help improve his depression. The Court found the employee’s request didn’t qualify for protection under the FMLA because it was not for a period of “incapacity,” i.e., an “inability to work, attend school or perform other regular daily activities due to the serious health condition.”

The employee had sent an email to his CEO, listing eleven weeks of vacation for the following two years. When the CEO denied the request, the employee responded that health professionals had told him that his need to take vacation time “is no longer optional.”

Not mentioned in the email was that the employee had been suffering from depression and anxiety which had produced panic attacks. The employee admitted that he did not request leave because he was incapacitated and that he was not unable to work.

The Eleventh Circuit held that the FMLA does not extend protection to any leave that is medically beneficial merely because an employee has a chronic health condition. “Giving an employer notice of unqualified leave does not trigger the FMLA’s protection,” Judge Cox of the Eleventh Circuit wrote. “Otherwise, the FMLA would apply to every leave request.”

Susan E. Groff