The Essential Guide to Family & Medical Leave

198 | the essential guide to family and medical leave
Lessons from the
Real World
An employee must try to reschedule foreseeable
intermittent leave that would result in understaffing.
Scott Kaylor was a CT technician at Fannin Regional Hospital. During his
employment at the hospital, Kaylor saw his doctor regularly for treatment
for a degenerative back disease.
On December 27, 1994, Kaylor was hospitalized for a flare-up of his back
injury. He spent three weeks on FMLA leave, then returned to work. On
January 31, Kaylor told his supervisor that he had an appointment with his
doctor on February 3. This appointment was one of his regular treatments
and had been scheduled before he was hospitalized. Kaylor’s supervisor told
him he could not take the day off because it would leave them short-staffed
and asked him to reschedule the treatment.
After hearing from other employees that Kaylor planned to call in sick on
February 3, his supervisor asked him whether he intended to show up. He said
that he would come to work. On the 3rd, however, he called in sick, claiming
to have a stomach virus. But he still went to his doctor’s appointment for
back treatment. The doctor said that Kaylor could have gone to work that
day, and the doctor’s notes didn’t mentioned a stomach virus.
Kaylor was fired for abuse of sick leave. Kaylor sued, claiming that he had
a legal right to take intermittent FMLA leave on February 3 and could not
have be fired for doing so. The court disagreed, finding that Kaylor had
an obligation to make reasonable efforts to reschedule his leave after his
supervisor told him that it would cause staffing problems. Because he didn’t
follow the rules for intermittent leave, Kaylor wasn’t protected by the FMLA.
Kaylor v. Fannin Regional Hospital, 946 F.Supp. 988 (N.D. Ga. 1996).
When an employee needs leave for an episodic problem, such as migraines,
asthma, or any other condition that comes on suddenly or waxes and wanes
in intensity, it can be very difficult to manage the employee’s time off. After
all, the employee typically can’t predict when the condition will necessitate
time off work. If the condition is unpredictable, you cannot insist that