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Diabetic leaving minutes early for break could be on intermittent leave

A shipping department employee with 35 years with a company was able to demonstrate disputed issues of fact in order to get past the employer's motion for summary judgment on his Family and Medical Leave interference and retaliation claims (Collins v The United States Playing Card Co, SD Ohio, 153 LC 35,218).

The employee was diagnosed as diabetic three years before he was terminated. He was on medication and sometimes had to sit down and eat to keep his blood sugar at normal levels. Because of this, he obtained a note from his physician indicating he needed to eat at scheduled times. When HR saw it, it encouraged him to fill out a form for intermittent leave which he was granted. Around this time, his supervisor disciplined him for various infractions, including two times he left the shipping area before his scheduled break time to buy food, and he was later terminated.

The employee might have been on intermittent leave on those occasions when he left the shipping department to get something to eat. There was a fact dispute on whether he gave the employer notice that he was requesting leave for a serious health condition that rendered him unable to perform his duties, something he would have had to do to invoke protection of the FMLA. The employee claimed that he gave adequate notice by submitting doctor's notes, a medical certification form and by informing his supervisor he was diabetic and by saying he had to take a break to get something to eat. The court rejected the employer's contention that leaving a workstation a few minutes early, in "such brief increments of time," to get something to eat is not protected by the FMLA. The court disagreed noting that there is no limit on the size of an increment of leave when the employee takes intermittent leave, citing a case concluding that "leave taken by a diabetic employee in order to eat to correct low blood sugar when medically necessary may qualify as intermittent leave," regardless of employer's break policy. Ultimately, there was a question of fact whether it was medically necessary for him to leave the workstation before his scheduled break time.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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