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Recently, the Fifth Circuit Court of Appeals—the federal appellate court covering Texas—in Mauder v. Metropolitan Transit Authority of Harris County, Texas, addressed the novel issue of whether an employee was entitled to leave under the Family Medical and Leave Act (“FMLA”) for alleged incapacitation while in the workplace. The plaintiff, Kenneth Mauder, was a diabetic who worked as a technical support employee in a customer call site. Mauder requested he be permitted to use FMLA leave for frequent, unscheduled, and extended restroom breaks he claimed were caused by his diabetes and diabetic medicine. FMLA cases traditionally involve leave requests for employees who are physically absent from the workplace. This case, however, examined whether or not an employee is entitled to temporary FMLA leave for periodic time away from her desk during the workday.

The FMLA allows eligible employees to take up to 12 weeks of unpaid leave during a 12-month period for a “serious health condition” that makes the employee unable to perform her job. A serious health condition is defined as an illness, injury, impairment, or physical condition that involves either (a) inpatient care or (b) continuing treatment by a health care provider.

Mauder’s case was examined under the second prong because he did not require inpatient care. “Continuing treatment by a health care provider” includes: (a) a period of incapacity exceeding three consecutive days; (b) any period of incapacity due to pregnancy or prenatal care; or (c) any period of incapacity or treatment if the incapacity is due to a chronic, serious health condition. “Incapacity” is defined as an inability to work due to a serious health condition, treatment therefore, or recovery therefrom. Further, the incapacity can be either episodic or permanent in nature. In other words, the serious health condition at issue may cause only an episodic rather than a continuing period of incapacity. The FMLA recognizes diabetes as an example of a chronic, serious health condition that causes episodic incapacity.

Mauder could not qualify for the first two categories of “continuing treatment” because he never missed more than three consecutive days of work and was obviously never pregnant. Consequently, Mauder was forced to argue that he was entitled to temporary FMLA leave under the third category of continuing treatment on the basis that diarrhea rendered him incapable of performing his job. The Court disagreed, noting that all of the cases that granted FMLA leave to an employee with severe diarrhea involved situations where the medical condition was so debilitating the employee could not physically go to work. Based on these prior holdings, the Court held that, in order to prove incapacitation within the meaning of the FMLA, the employee must prove they are medically incapacitated to the point they cannot attend work. Mauder could not prove his condition incapacitated him to such a degree or that it otherwise prevented him from attending work and so his FMLA claim failed.

Based on this case, it will be difficult for an employee to ever be able to prove they are entitled to use FMLA leave for unscheduled breaks during the workday, regardless of whether the need for breaks is caused by the employee’s medical condition or is a side effect of medication. Employees should only be permitted to use FMLA leave for absences that render them unable to work; in other words, FMLA leave will likely be unavailable unless the employee is either physically unable to go to work or must, because of her incapacitation, leave work during the course of the day.

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