In Lundy v. Town of Brighton, No. 06-CV-6280L, 2007 U.S. Dist. LEXIS 83132 (W.D.N.Y. Nov. 9, 2007), the employee, a police officer, alleged that the Town impermissible denied her request for FMLA leave to excuse her from attending Instructor Development Training to which she was assigned or engage in public speaking. The court opined that the inability to attend training or engage in public speaking did not render Lundy unable to perform the essential functions of her position as a police officer. As such,the court found that Lundy failed to allege facts sufficient to establish that she had a serious health condition within the meaning of the FMLA because the condition did not prevent her from performing the essential functions of her job as a police officer.
Comment: To be covered by the FMLA, the serious health condition must render "the employee unable to perform the functions of their position." The DOL regulations define this to mean that the employee is either unable to work at all, or is unable to perform any one of the essential functions of the employee's position. 29 CFR 825.115.
Whether a function is essential is determined in accord with the requirements of the Americans with Disabilities Act, 29 CFR 1630.2(n). Essential functions are the fundamental job duties performed in a position. The term "essential functions" does not include the marginal functions of the position. A function may be essential because:
- The position exists to perform that function.
- There are a limited number of employees available who could perform that function.
- The function is highly specialized.
Lundy reminds us that not every activity an employer requires an employee to perform is essential to the employee's job functions. As such, an employee's request for leave to avoid doing ancillary activities due to a medical condition may not be covered by the FMLA. To avoid FMLA violations, employers need to make sure that the employee's request for leave is due to incapacity that renders the employee unable to perform at least one essential job function.
Keep in mind that it is just as illegal to deduct leave from an employee's 12-week entitlement where all of the conditions for FMLA leave have not been met as it is to deny FMLA leave where all the conditions exist.