October 1, 2007
Jeffrey Lindemann

On September 28, 2007 and October 1, 2007, the Sixth Circuit handed down two decisions in which the Court interpreted the FMLA.

In the first case, Novak v. MetroHealth Medical Center, the Court affirmed the trial court’s grant of summary judgment in the employer’s favor on Novak’s FMLA claim.  The Court considered several issues, but there were two significant issues addressed.  First, in the Sixth Circuit, an employer desiring to challenge an employee’s claimed serious health condition is not required to first obtain a second opinion.

Second, the FMLA permits leave to care for a son or daughter who is over 18 where the son or daughter is “incapable of self-care because of a mental or physical disability.”  The court followed the FMLA regulations and interpreted the phrase “mental or physical disability” to mean that the over 18 son or daughter must have a disability under the Americans with Disabilities Act.

In the second case Wysong v. Dow Chemical Co., the court reversed the trial court’s grant of summary judgment in the employer’s favor.  The facts of Wysong are complicated, but the holding of the court is that an employer may not use an employee’s prior FMLA leave to influence its decision concerning a new request for FMLA leave.  The court held that because the employee’s prior leave had been taken into account by the company’s doctor in imposing “severe restrictions” on the employee’s return to work, the prior leave was inappropriately used by the employer as a negative factor in an employment action.  The court also held that an “involuntary leave” claim under the FMLA does not arise until the employee seeks FMLA leave, but is refused it.