Legal Question in Medical Leave in Florida

Medical disability time off/ FMLA

My wife is 7 months pregnant and was given specials restrictions by her doctor that could not be accommodated by her employer. She was then put on medical disability leave and receives checks weekly. Her employer meanwhile has said that family medical leave started the day she was put on medical disability leave. She had planned on using the family medical leave until after the baby was born and would have worked if the restrictions would have been accommodated. If the restrictions would have been accommodated by her employer, she would not be out on medical disability, she would be working. As it is now she is out on medical disability and her employer is charging that to her FMLA leave as well. Is this legal?


Asked on 6/09/04, 5:32 pm

1 Answer from Attorneys
Jeffrey Sheldon

Re: Medical disability time off/ FMLA

Congratulations on the baby. I hope all goes well for your wife and child to be.

Neither the actual FMLA statute or the regulations specifically state that an employer can charge leave time to FMLA when an employee does not want to take FMLA leave. However, the regulations say it is the employer's option to count leave as FMLA when they find out it is for an FMLA purpose. So it seems they can do as they have done here. (I am unaware of any caselaw on this specific issue, and the courts could interpret the law differently).

However, if they are treating your wife differently than others, for example, if they have not counted the leave of male employees as FMLA even though it qualifies as such, then the employer may be violating the Pregnancy Discrimination Act. In other words, the employer seems to be okay under the FMLA, but there may a be a discrimination issue.

The same is true for accommodation. The health condition is temporary (hopefully), so it is not covered by the ADA and state disability laws and accommodation is not required. However, if the employer accommodated others with serious, short-term health problems in the past, it might be discriminatory not to do the same for your wife.

I would need more facts before I could say one way or the other. Feel free to have your wife call for a free consultation if she knows of situations where employees took leave for serious health situations but it was not charged to FMLA, or accommodations were made for serious health matters.

Good luck.

Jeff Sheldon

Jeffrey L. Sheldon, Esquire

The Sheldon Law Firm

17804 St. Lucia Isle Drive

Tampa, FL 33647

813.986.7580

(f) 813.986.7489

(Admitted in Fl., MD, D.C., and Pa.)

[email protected]

http://www.SheldonLawFirm.com

Disclaimer: This posting does not and is not intended to constitute legal advice. It is not confidential, nor is it privileged, and it does not create an attorney-client relationship. Please consult with an attorney for advice specific to the facts of your case.

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Answered on 6/14/04, 12:26 am


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