In Aboukora v. Keebler Co. and Kellogg USA, Inc., No. 3:04-CV-0059 (CAR), 2006 U.S. Dist. LEXIS 18072 (M.D.Ga. March 30, 2006), the court denied the employer’s pre-trial motion for summary judgment. The employer had argued that the employee’s symptoms (back pain, stomach and intestinal problems) did not qualify as a chronic serious health condition because the employee did not suffer a “period of incapacity” within the meaning of the FMLA. FMLA “Incapacity” is defined as “inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom.” 29 CFR 825.114(a)(2)(i). The employer argued that the employee was not incapacitated because he was able to walk to the playground and care for his three young children on days he was allegedly unable to report to work. The court disagreed. The court noted that, in the Eleventh Circuit, “a demonstration that an employee is unable to work in his or her current job due to a serious health condition is enough to show that the employee is incapacitated even if that job is the only one the employee is unable to perform.” In the case at hand, the court noted that, even if the plaintiff exercised and cared for his children on the days he missed work, if he can who his health conditions caused him to be unable to work his job as a line attendant at Athens Packaging, Plaintiff can show he was incapacitated. The court found the existence of genuine issues of material fact regarding plaintiff’s incapacity precluded summary judgment to the employer.
Comment: The decision illustrates two points. First, the FMLA does not require that an employee taking FMLA leave for their own serious health condition be totally incapacitated such that they are laid up or bedridden. Rather, the regulations provide that an employee is entitled to FMLA leave if a serious health condition renders the employee unable to perform an essential job function. Second, where the need for leave is due to the employee’s own serious health condition, “incapacity” is determined solely based on the employee’s inability to perform their current job. That is, the other indicia of incapacity (e.g., inability to attend school or perform other regular daily activities due to the serious health condition) set forth in 29 CFR 825.114(a)(2)(i) do not apply. Those criteria are included in the regulation to address an employee’s need for leave to care for a spouse, son, daughter, or parent with a serious health condition because such individuals may not work.
