(Note: This alert addresses how the definition of disability under the ADA applies to the FMLA.)
Ms. Donna Novak is employed by the MetroHealth Medical Center ("MetroHealth"), which has a no-fault attendance policy that assigns points to employees based on hours of unexcused absences. If points exceed 112 during a year, the employee is discharged. Ms. Novak was discharged when she accumulated 124 points between April 16, 2003 and April 16, 2004. In the months leading up to her discharge on April 16, 2004, she called into work on several occasions citing back pain and her daughter's postpartum depression as reasons for her absence. Ms. Novak sought leave under the Family and Medical Leave Act (FMLA) once she realized that her points exceeded 112.
The parties significantly disputed whether Ms. Novak was entitled to FMLA leave for either her lower back injury or due to her daughter's postpartum depression. In April 2004, MetroHealth held a "pre-discharge" meeting to discuss if Ms. Novak's absences qualified under the FMLA. However, the meeting was suspended so that she could have additional time to submit authentication forms. Ms. Novak submitted additional certification forms, including one completed by Dr. Schubeck stating that her 18 year old daughter, Victoria, suffered from postpartum depression that would last for one week.
MetroHealth determined that Ms. Novak's absences did not qualify as FMLA leave and that she provided "contradictory information" that did not qualify as leave under any policy. Ms. Novak filed a complaint, in part, alleging FMLA interference and FMLA retaliation.
The FMLA prohibits an employer from counting FMLA leave against the employee under a "no fault" attendance policy. An employee may file a cause of action for FMLA interference if the employee believes his/her FMLA rights were denied. Ms. Novak stated her back injury was an FMLA qualifying condition and her certification forms were sufficient proof of the condition. The FMLA further provides that a medical certification form is presumptively valid if it contains the required information, but the employer may overcome this presumption by showing that it is invalid or inauthentic.
Specifically, the certification did not contain details such as when the serious health condition began and its probable duration. Moreover, MetroHealth claimed the certification was not authentic because it was not completed by Dr. Wolszek — the physician of record authorized by MetroHealth to complete the certification form — but by Dr. Wolszek's office assistant, and Dr. Wolszek had neither recently examined Ms. Novak or had knowledge of her current condition.
Specifically, the FMLA authorizes leave to care for a child 18 years of age or older if the child is suffering from a serious health condition and incapable of self-care because of a mental or physical disability. The court applied the ADA's definition of a "mental or physical disability" in order to determine whether Victoria had a disability. The court relied on Dr. Schubeck's certification form to determine that her post partum depression did not substantially limit her ability to care for herself because it was not severe and would only last a week or two. A short-term restriction on a major life activity generally does not constitute a disability under the ADA. The court concluded the FMLA does not authorize Ms. Novak to take leave to care for her daughter.
The Eleventh Circuit found no error in the district court's conclusion that Ms. Novak was not entitled to FMLA leave because of her lower back injury or her daughter's post partum depression.
The FMLA allows an employee to take up to 12 weeks of unpaid leave during a 12-month period, in part, to care for an immediate family member with a serious health condition. However, leave is available "to care for a child 18 years of age or older only if the child is suffering from a serious health condition and incapable of self-care because of a mental or physical disability." In making this determination, the U.S. Department of Labor created regulations requiring the use of the ADA's definition of disability. See 29 C.F.R. § 825.113(c)(2). What condition, if any, may a child 18 years of age or older have that meets the ADA's definition of disability, but is only serious enough to require care 12 weeks out of the year? In contrast, a minor child, spouse, or parent is not required to have a disability to satisfy the FMLA requirement of immediate family relationship.
The Eleventh Circuit cited the Sixth Circuit in Hein v. All America Plywood Co. for the rule that a "short term restriction on a major life activity generally does not constitute a disability under the ADA."