FMLA

Adesina Mercer worked for the Arc of Prince George County from 2004 to 2011.  Her job included applying for and processing initial applications for benefits for Food Stamps and Social Security.

In May 2007, The Arc put Mercer on conditional employment status due to poor work performance.  She was returned to regular status the next month. However, while she was on medical leave in 2009, her co-workers discovered that many of the Arc’s food-stamp-eligible clients were no longer receiving benefits.  When Mercer returned to work, this issue was addressed with her and she was instructed to take steps to renew those clients’ benefits.

In October 2010, Mercer received a performance review which was largely average with only one category being above average.  The next month, The Arc once again discovered that some food-stamp-eligible clients were not receiving benefits.  Mercer was provided with a list of clients and told to pursue reinstatement of benefits.

Mercer countered that these kinds of lapses in benefits were fairly commonplace.  She felt that she should not be reprimanded for these lapses.

In January 2011, Mercer was involved in a car accident with injuries that kept her out of work for about three weeks.  She requested and obtained FMLA leave.   While Mercer was on leave, other workers performed her job and discovered again that there were many more eligible clients not receiving benefits due to Mercer’s failure to submit renewal or redetermination requests.

Mercer returned to work on February 22, 2011 and was placed on administrative leave due to poor job performance.  At the end of the five-day administrative leave period, Mercer sought additional FMLA leave until March 14, 2011.

The investigation of Mercer continued, leading The Arc to conclude Mercer grossly deviated from her job’s requirements and failed to obtain Food Stamp benefits for 99 of 160 eligible clients.  For this reason her employment was terminated during her FMLA leave.

Mercer sued and argued that her termination constituted unlawful interference with the exercise of her FMLA rights.  The Arc moved to dismiss the case, and the district court ruled for the Arc.  Mercer appealed to the Fourth Circuit Court of Appeals.  The Court said that “being on FMLA leave does not provide an employee any greater rights than he or she would have had without taking leave, and an employee’s right to reinstatement is not absolute.”

An employer has discretion to discipline or terminate the employment of an at-will employee for poor performance regardless of whether the employer’s reason for terminating the employment was discovered while the employee is taking FMLA leave.

Mercer argued that her employer improperly used her leave request to generate a reason for termination.  The Court said the fact that the leave permitted The Arc to discover the problems with Mercer’s job performance could not logically be a bar to the employer’s ability to fire a deficient employee.

The case is helpful because it demonstrates an important rule, namely that an employee on FMLA leave is not entitled to greater rights than the employee would have had without taking leave.  The case can be found at Mercer v. The Arc of Prince George County, Inc., 2013 U.S. App LEXIS 14060 (4 Cir. 2013).

The City of Gibraltar employed 41 employees, excluding its “volunteer” firefighters.  When it fired one of the firefighters, Paul Mendel, he sued under the FMLA. The city countered that it was not covered under the FMLA because it had less than 50 employees. There were 25-30 “volunteer firefighters” whom the City contended were not truly employees and should not be counted toward the 50 employee threshold.

The issue in the case came down to the definition of “employee” for purposes of the FMLA.  The firefighters did not receive health, sick, or vacation benefits, nor did they receive social security benefits.  They did training on their own time.  On the other hand, when the volunteer firefighters responded to any emergency call or maintained equipment, they were paid $15 per hour.

The Sixth Circuit Court of Appeals studied the Fair Labor Standards Act to obtain the definition of “employee” since the FMLA and FLSA use the same standard.  The Court observed that the United States Supreme Court previously adopted an “economic reality” test to determine whether someone was an employee for purposes of the FLSA. While the district court found that the city had no control over the firefighters, the Court of Appeals said that lack of control was not sufficient to account for the result in this case.  “Each time a firefighter responds to a call, he knows he will receive compensation at a particular hourly rate — which happens to be substantially similar to the hourly rates paid to full-time employed firefighters in some of the neighboring areas.”

The Court noted that the FLSA excludes those who receive only a nominal fee from the definition of employee, but the Court did not consider a payment of $15 per hour to be a nominal fee. Therefore the Court held in favor of employment status for the so-called City of Gibraltar volunteer firefighters.  It found that the FMLA applied to the city and to Mr. Mendel’s law suit:

Despite the fact that the Gibraltar firefighters are referred to as ‘volunteers,’ the inescapable fact nevertheless remains that they ‘work in contemplation of compensation.’  Thus, the Gibraltar firefighters are ‘employees’ and not ‘volunteers’ within the meaning of the FLSA.

There was an interesting dissent in this case in which it was argued that the city does not require a firefighter to respond to any fires and did not supervise such firefighters on the scene.  Someone could go for years without responding to a single fire.  The dissent pointed out that the volunteers really were not paid $15 per hour considering the fact that they had to complete 152 hours of training, pass an exam and then complete an additional 73 hours of training each year — all without pay.

This case can be found at Mendel v. City of Gibraltar, 727 F.3d 565 (6^th Cir. 2013).

• In Valdez v. Brent McGill and Mueller Supply Company, Inc., 2012 U.S. App. LEXIS 2783 (10^th Cir. 2012), the court considered whether a request for telecommuting and additional leave was a reasonable accommodation.

Doyle Brown worked as a warehouse supervisor for Mueller Supply Company.  He supervised Mueller’s warehouse, including all shipping and receiving.  He advised his own supervisor, McGill, that he had cancer and would need surgery in April 2005.  Even though the company employed too few people at the work site to trigger FMLA, the company nevertheless offered Brown FMLA leave.  Brown returned to work following his surgery in May 2005.

In January 2006, Mueller approved intermittent FMLA leave for recurrent health-related absences.  One year later, on January 24, 2007, Brown presented a note from his doctor indicating that he had serious health conditions and would need to be out of work until February 8, 2007.

On February 7, 2007, Mueller sent Brown a letter stating that he had exhausted his 12 weeks of FMLA leave.  On the same date Brown presented a new note stating that he would need three more weeks of leave until March 1, 2007.  Mueller then terminated Brown on February 8, 2007 for poor work performance and excessive absences.  Brown offered to come to work against doctors’ orders but the company refused. Brown then sued under the ADA and argued that the company failed to make reasonable accommodations.

At some point Brown passed away and his personal representative, Valdez, proceeded on the case.  She argued that Brown could have performed the essential job functions had the company offered him the opportunity to work from home.  The court noted that Brown had conceded in his deposition that physical attendance in the workplace was required.  He maintained that he could use technology to perform many of the essential functions of the job, but he conceded that at home he could not perform quarterly or random inventory counts, could not interact with customers in the warehouse, and could not effectively supervise his staff.  Not being in the warehouse would make it hard to know whether his employees had completed job tasks.  Based on these statements, the court concluded that working from home was not a reasonable accommodation.

Next, Valdez argued that additional leave would have been a reasonable accommodation.  The court said, “A leave of absence may be a reasonable accommodation as long as the employee’s request states the expected duration of the impairment.”  The court said, “Here, the record shows it was uncertain if or when Brown would sufficiently recover from his impairments to be able to return to work.”  The court added, “In light of his diagnosis with colon cancer, his frequent absences, and his inability to return to work according to the earlier physician’s note, it was uncertain he would be able to return to work on March 1, 2007.” Further, no doctor said that his conditions would be resolved by March 1, 2007.

Valdez also argued that the company failed to engage in the very important interactive process to determine whether there was a potential reasonable accommodation.  The court rejected this argument as well.  “Accordingly, an employer is not required to engage an employee in a futile interactive process where, as we have concluded was the case here, no reasonable accommodation was possible.”

In short, the ADA case was dismissed.  The opinion is interesting because employers are generally advised to engage in the interactive process.  But here the court held that the interactive process would have been of no utility since all of the requests for accommodation were simply not reasonable.

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This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.

Employers should be aware that interpretation of being incapable of self-care and having a disability are very broad.

The Americans with Disabilities Act Amendments Act (ADAAA) is having an impact in other areas of law, specifically the FMLA.  A good example concerns the FMLA provision for leave to care for an adult son or daughter who is incapable of self-care.  The United States Department of Labor issued Administrator’s Interpretation No: 2013-1 on January 14, 2013 stating:  “It is the Administrator’s interpretation that the ADAAA’s broad definition of ‘disability’ will therefore increase the number of adult children with disabilities for whom parents may take FMLA-protected leave if the adult son or daughter is incapable of self-care because of the disability and in need of care due to a serious health condition.”

The question is a common one for many employers: can a parent take FMLA leave to care for an adult son or daughter?  The FMLA entitles a parent to take leave for a son or daughter with a serious health condition under 18 years of age.  If the child is older than 18 years of age, the law allows leave when the adult child is incapable of self-care because of a mental or physical disability.  But how is a mental or physical disability defined under the law?

Before answering this question, the Acting Deputy Administrator made clear that it does not matter whether the disability of the child commenced when the child was 18 or younger, or after turning 18.  A child whose disability commenced in adulthood is still considered a “son or daughter.”  The Administrator went on to state that FMLA adopts the ADA definition of disability, noting that the ADAAA broadened the definition of “disability” by expanding the definition of “major life activities.” They include performing manual tasks, standing, lifting, bending, seeing, hearing, and other things that most people do easily, as well as a new category of operations of major bodily functions.  Some of these major bodily functions are normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

The Administrator added that being incapable of self-care because of a disability means “the individual requires active assistance or supervision to provide daily self-care in three or more of the ‘activities of daily living’ (ADLs) or ‘instrumental activities of daily living’ (IADLs).”  29 C.F.R. 825.122 (c)(1).  Examples of ADLs include caring appropriately for one’s grooming, hygiene, bathing, dressing and eating.  IADLs include cooking, cleaning, shopping, paying bills, maintaining a residence, and using telephones and directories.

The Administrator provides this example:

An employee’s 37-year-old daughter suffers a shattered pelvis in a car accident which substantially limits her in a number of life activities (i.e., walking, standing, sitting, etc.).  As a result of this injury, the daughter is hospitalized for two weeks and under the ongoing care of a health care provider.  Although she is expected to recover, she will be substantially limited in walking for six months.  If she needs assistance in three or more activities of daily living such as bathing, dressing, and maintaining a residence, she will qualify as an adult ‘daughter’ under the FMLA as she is incapable of self-care because of a disability.  The daughter’s shattered pelvis would also be a serious health condition under the FMLA and her parent would be entitled to take FMLA-protected leave to provide care for her immediately and throughout the time that she continues to be incapable of self-care because of the disability.

 The take-away from this Department of Labor Interpretation is that HR professionals and employers need to realize that FMLA leave to care for an adult son or daughter will become more common in light of the ADAAA.  It is a mistake to assume that FMLA leave will be rare or unusual when leave is requested to care for a child or son well over 18.  The test for being incapable of self-care is fairly broad and relatively easy to meet, as noted above. Similarly, the test for disability status is much easier to meet than it was before 2008 and the passage of the ADAAA.

This Interpretation can be found at 2013 DOL FMLA LEXIS 1 (January 14, 2013).

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This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.

Many employees seek FMLA leave for more than one medical condition within the same year. This can create difficulties for both employee and employer. It is important to read medical certifications carefully, as is noted in Greer v. Cleveland Clinic Health System – East Region, 2012 U.S. App. LEXIS 22594 (6th Cir. 2012). (more…)

Sara Jaszczyszyn worked as a Customer Service Representative for Advantage Health Physician Network.  On August 31, 2009, she saw her physician about a recurrence of back pain related to a prior car accident and two prior surgeries.  She was unable to work the next day and presented a Work Release Form on September 3, 2009 from her physician, who indicated that she was totally incapacitated.

Jaszczyszyn returned to work on September 8, 2009. Her doctor submitted an FMLA certification on September 9, 2009, indicating that Jaszczyszyn was having intermittent flare-ups of back pain which, when active, made it impossible for her to work.  Jaszczyszyn seemed to treat the intermittent leave certification from her doctor as approval for continuous leave and stopped working on September 10, 2009.  She never returned to work.  She saw her doctor again on September 22, 2009, and the doctor indicated that she was disabled from September 10, 2009 to October 5, 2009.  Eight days later, he amended that note and said she was disabled from October 5, 2009 to October 26, 2009.

On October 3, 2009, Jaszczyszyn attended Pulaski Days, a Polish heritage festival.  She visited a number of Polish Halls with a group of her friends for a period of eight hours.  One friend shared 127 photos from the day’s events with Jaszczyszyn, who then posted them on her Facebook.  There was some dispute whether she was dancing or merely standing between two friends in one posting.

During that same weekend, Jaszcyszyn left several voicemails at work indicating that she would not be coming to work on Monday due to the pain she was in.  Some of her friends at work saw the postings on her Facebook site and shared them with her supervisor.  Jaszcyszyn was called into work to attend a meeting to discuss, in part, the postings on her Facebook.  She addressed her presence for eight hours at the festival by saying that no one told her this was prohibited.  She also said she was in pain at the festival.  When asked how she reconciled her activities at the festival with the fact that she was asserting she was too incapacitated to come to work, she was silent.

The company terminated her employment as a result of its concerns about FMLA fraud.  Jaszczyszyn then sued for alleged retaliation under the FMLA.  The Court noted that the company properly considered workplace fraud to be a serious issue.  The Court rejected her claim for retaliation:

While Jaszczyszyn relies heavily upon a significant amount of after-the-fact medical evidence (such as the deposition of her treating physician) in trying to cast Advantage’s justification as pretextual, Advantage’s investigation was adequate and turned in large part on Jaszczyszyn’s own behavior at the termination interview, which she does not address at all.  She did not refute Advantage’s honest belief that her behavior in the photos was inconsistent with her claims of total disability.  Thus, as a result of her fraudulent behavior, her claim of FMLA retaliation fails.

This case demonstrates once again that Facebook postings can often produce valuable evidence for employers in a variety of legal areas.  Further, it shows how important it is to read medical certifications carefully.  The initial certification was for intermittent leave, which promptly led to continuous leave contrary to the initial certification.  The case may be found at Jaszczyszyn v. Advantage Health Physician Network, 2012 U.S. App. LEXIS 23162 (6^th Cir. 2012).

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This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.

Kelly Queen, plaintiff, worked as a police dispatcher for the City of Bridgeton.  On October 16, 2006, she experienced a racing heartbeat and left work.  Her family doctor referred her to a cardiologist.  He diagnosed her with a mitral valve prolapse condition, which may have been responsible for tachycardia and dyspnea.  She also underwent a cardiovascular stress test.

Plaintiff returned to her family doctor on November 6, 2006.  The doctor recommended no return to work until January 2007. She saw he doctor again on January 4, 2007 and January 25, 2007, and she was cleared to return to work on February 18, 2007.  She never had any similar heart racing during her absence.  She was able to return to work and continue in her job.

During her absence, plaintiff exhausted her 10 sick days as well as her FMLA leave.  She therefore requested access to the City’s donated leave program, referred to as “sick bank.” That policy was negotiated under a collective bargaining agreement in 2003.

The purpose of the sick bank policy was to allow City employees to donate earned sick time and/or vacation time to another City employee who was suffering from a catastrophic health condition or injury expected to require a prolonged absence from work.  The policy provided that the employee seeking access to the sick bank must contact his or her department head, who in turn must require medical documentation concerning the nature, severity and duration of the medical emergency.

Plaintiff submitted notes from her doctor but not actual medical records.  The City therefore denied the request, finding that the condition did not meet the test of a catastrophic event.  Plaintiff filed a grievance, which was settled as follows:

The parties agree to settle the above grievance based upon permitting the grievant to invoke the procedures of Article 7 of the [CBA] without interference relative to donated medical leave if the employee’s treating physician documents a catastrophic health condition or injury as specified in the [CBA].

Plaintiff was given a second chance to provide medical documentation showing a catastrophic health condition but failed to do so.  Instead, she sued alleging disability discrimination under the New Jersey Law Against Discrimination.  She argued that the City failed to make reasonable accommodation to her by not approving her sick bank request.

The City proved that prior recipients of the sick bank had high risk pregnancy that required complete bed rest, Guillain-Barre Syndrome, breast cancer, a stabbing injury and esophageal cancer, and prostate cancer.  One woman had been denied sick bank access who had been recuperating from pregnancy and had high blood pressure.  Two men had been denied sick bank access who suffered from a back condition and from a heart condition. The Court contrasted this case with other suits alleging discrimination based on disability.

Unlike the typical claim, wherein an employee seeks an accommodation that would facilitate her return to work, maintain her employment, or remedy her condition, plaintiff here demands just the opposite, namely a monetary benefit that would permit her continued absence from work, and which defendants have no recognized legal duty to provide.  Indeed, plaintiff never established that she was able to work with or without any accommodation.

As to the sick bank itself, the Court held there was no “blanket mandate” that an employer provide donated sick leave as a matter of right to anyone with a disability.  The Court said that plaintiff failed to show that the City acted arbitrarily in restricting access to the sick bank to those who have catastrophic injuries.  In the end, the Court said that plaintiff simply did not qualify for the sick bank.

This case can be found at Queen v. City of Bridgeton, 2012 N.J. Super. Unpub. LEXIS 2425 (App. Div. October 29, 2012).

FMLA abuse remains a problem for employers, leading to the question of whether an employer can obtain surveillance to make sure that the leave is taken for the reason requested.  In Vail v. Raybestos Products Company, 533 F.3d 904 (7^th Cir. 2008), an Appeals Court provided very helpful guidance on this issue.

Diana Vail worked for Raybestos Products Company and was considered a good worker.  She worked the third shift from 10:45 at night until 6:45 the next morning.  From May through September 2005, she received more than 33 days of approved leave for chronic migraines.  She would call in prior to her evening shift to advise that she could not come in due to her migraine condition.

Vail’s husband owned a lawn-mowing business, and the busiest season was the summer.  Her husband had several cemetery clients whose lawns needed to be mowed during quiet times during the day.  The company began to notice a pattern in regard to Vail’s leave and decided to engage the services of an off-duty police sergeant to monitor Vail’s activities while on leave.

On October 6, 2005, Vail saw her physician, who prescribed a different blood pressure medication to treat her migraines.  The doctor told her not to work for 24 hours after first taking the medication.  Vail thereafter called in requesting leave.  That request was granted.  At 10:16 a.m. Vail called her physician and asked the physician to submit a note to Raybestos explaining why she had been absent from work.  Ten minutes later, Vail left her house and filled up two lawn mowers at a gas station, proceeding to mow the law at the New Richmond Cemetery, a client of her husband’s business.  Later on the same day she called in again to state that she could not work her shift due to her migraine condition.

When the company became aware of Vail’s work at the cemetery while she was seeking leave under the FMLA from her Raybestos job, it terminated her employment.  The union did not object.  Vail sued and argued that her termination interfered with her rights under the FMLA.

The Court said that to prove a claim for interference, the plaintiff must show that she took leave “for the intended purpose of the leave.” 29 U.S.C. 2614(a)(1).  The Court said, “[A]n employer has not violated the FMLA if it refused to reinstate the employee based on an ‘honest suspicion’ that she was abusing her leave.”  The Court concluded that Raybestos had clearly shown it had an honest suspicion based on the surveillance which it had obtained.  It therefore granted summary judgment to Raybestos and dismissed the suit.

It is important to note that the company already suspected that Vail was abusing her leave even before it hired the off-duty police officer.  The case does not stand for the proposition that employers can perform random surveillance on those who take FMLA leave.  Instead, the Court emphasized that there was an honest suspicion of FMLA abuse.

Maria Lucia Tayag, Plaintiff, worked for Lahey Clinic Hospital, Inc. in Massachusettsas as a Health Information Clerk.  She received favorable reviews since she began her employment in 2002.  Her husband, Rhomeo Tayag, suffered from several chronic medical conditions, including recurrent gout, kidney disease, rheumatoid arthritis and end-stage renal failure.

Plaintiff routinely used intermittent FMLA leave for one or two days to take Mr. Tayag to medical appointments or help him with household activities.  In June 2006, Plaintiff asked her supervisor to approve seven weeks of vacation time from August 7, 2006 to September 22, 2006.  The supervisor denied the request for seven weeks of vacation time.  Plaintiff then advised that she needed the time off because her husband was scheduled to have hip and eye surgery.  The supervisor then directed Plaintiff to Lahey’s FMLA administrator, Susan Olsen.

On July 8, 2006, Plaintiff advised Olsen that she needed to take seven weeks off to care for her husband, who was recovering from cardiac angioplasty.  The leave would begin August 7, 2006 and end on September 25, 2006. Olsen told Plaintiff she needed to obtain a medical certification from her husband’s cardiologist to support the leave request.  Plaintiff simply provided a copy of the angioplasty records instead of a medical certification. Olsen responded that this was insufficient.

On August 2, 2006, Plaintiff provided a note from Mr. Tayag’s primary care physician, an internist, stating that Mr. Tayag’s medical problems “significantly affect his functional capacity to do activities of daily living and that his wife should be given leave” for medical reasons to “accompany Mr. Tayag on any trips as ne needs physical assistance on a regular basis.”  The letter referred to Mr. Tayag’s chronic liver and kidney problems.

Olsen advised Plaintiff to obtain a certification from the cardiologist who performed Mr. Tayag’s angioplasty.  She told Plaintiff that her forms were inadequate and her request would not be granted without the cardiologist’s certification.

On August 7, 2006, Plaintiff left a message stating that she was not coming to work.  The next day she told Olsen that she did not come to work on August 7^th because her husband needed her care and she had completed all her paperwork requirements. Later that day the Tayags left for thePhilippines where they remained until September 22, 2006.

At no time did the Plaintiff ever inform Lahey that she was going to the Philippines to participate in faith healing activities.  The hospital did not know that she was going to the Philippines at all.

While the Tayags were in thePhilippines, the cardiologist submitted a medical certification stating that Plaintiff did not need to take FMLA leave to care for her husband.  Lahey then sent Plaintiff a letter terminating her employment.  Plaintiff thereafter sued alleging that her FMLA rights had been violated.

The record indicated that the Tayags had spent three and a half weeks attending a “Pilgrimage of Healing Ministry” at St. Bartholomew Parish in the Philippines.  Plaintiff asserted that her Catholic priest was renowned for his “miraculous healing.” Mr. Tayag did not see any physician during his seven weeks in the Philippines.  Of the 47 days in thePhilippines, Plaintiff and her husband spent 19 days away from St. Bartholomew Parish with family and friends.  Plaintiff carried her husband’s bags, pushed his wheelchair and provided him with his medication while in the Philippines.

The Court first observed that there must be care provided for the FMLA to be triggered. Providing psychological care is recognized under the FMLA together with providing physical care.  Plaintiff argued that she provided care by assisting with basic needs, pushing Mr. Tayag’s wheelchair, and administering medications.  Her husband could not have traveled without her, according to Plaintiff.

Lahey argued that there is no support for “miraculous healing” as covered under the FMLA.  Plaintiff responded that in 2009 certain Christian Science practitioners were designated as health care providers under the FMLA.  Nonetheless, the Court said, “It is far from clear that caring for a seriously ill spouse on a trip for non-medical religious purposes is a protected activity under the FMLA.”  The Court side-stepped the issue of faith healing and focused instead on the number of days that Plaintiff spent with her husband with family and friends.

Even if caring for a sick spouse on a trip for faith-healing were protected because of its potential psychological benefits, it is undisputed that nearly half of the Tayag’s trip was spent visiting friends, family, and local churches.  The FMLA does not permit employees to take time off to take a vacation with a seriously ill spouse, even if caring for the spouse is an ‘incidental consequence’ of taking him on vacation.

For this reason the Court rejected Plaintiff’s suit.  It did not squarely hold that faith healing could never be considered protected under the FMLA.

Plaintiff also attempted to claim that Lahey violated her ADA rights by rejecting the certification provided by the family doctor and insisting on the cardiologist’s certification and by terminating her employment.   The Court said that under the circumstances of this case, Lahey had a right to seek more medical information.  Plaintiff gave different versions of why she wanted the time off.  First, she said it was a vacation.  Then she said it was because her husband was recovering from surgery for his eye and hip and then angioplasty.  Plaintiff’s ADA argument depended on her leave being covered under the FMLA.  Since the Court held that her trip was in the nature of a vacation, it was not FMLA protected.  Hence, the termination of plaintiff was appropriate for taking unapproved absences.

This case is certainly one of the first that deals with faith healing and the FMLA.  The case can be found at Tayag v. Lahey Clinic Hospital, Inc., 677 F. Supp. 2d 446 (D. Mass. 2012).