The Essential Guide to Family & Medical Leave

108 | the essential guide to family and medical leave
Lessons from the
Real World
An employee suffering from flare-ups of a chronic
condition is entitled to intermittent leave.
Kathleen Victorelli, an employee at Shadyside Hospital, requested leave
when she experienced an episode of stomach pain, nausea, and vomiting as a
result of peptic ulcer disease that her doctor had diagnosed two years earlier.
The hospital refused the request. Victorelli took the leave anyway and the
hospital fired her. She sued, claiming that Shadyside had violated the FMLA.
The court held that Victorelli’s peptic ulcer disease was a chronic medical
condition that entitled her to intermittent leave when her condition flared up.
Victorelli v. Shadyside Hosp., 128 F.3d 184 (3 rd Cir. 1997).
Leave Must Be Medically Necessary
An employee may not take intermittent leave simply because that’s what
he or she prefers: It must be medically necessary. This means the employee
must need time off for a serious health condition (as defined in Chapter 4),
and the employee must need that leave in separate increments rather than
all at once.
EXAMPLE: Eric tells you that he needs to reduce his work schedule from 40 hours
per week to 30 hours per week to recover from surgery. You request medical certification
and give him a preliminary designation of the leave as FMLA-qualified, subject
to withdrawal if the certification is inadequate (see “Designating Time Off as FMLA
Leave” in Chapter 7).
When you get the medical certification, you discover that the surgery is elective
cosmetic surgery to reduce eyelid puffiness. You withdraw the preliminary FMLA
designation and deny Eric’s request for FMLA leave to recover from this surgery. Have
you violated the FMLA?
No. Elective surgery and recovery from it don’t count as serious health conditions
under the FMLA.