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FMLA Does Not Excuse Unrelated Absenteeism

Diagnosed with bladder cancer and asthma, Mary Beth Bertig was granted time off under the Family and Medical Leave Act (FMLA). She took approximately four weeks off.  After returning from leave, Ms. Bertig missed another 13 days of work. On each of these occasions, she gave varying reasons such as: foot pain; a stress fracture in her foot, gastrointestinal issues; a fever; stomach cramps; a sore throat; dizziness; and a common cold. Under the company’s absence policy, employees were entitled to seven days missed during a 12-month period. Ms. Bertig was fired for missing too much work. She sued her employer, Julia Ribaudo Healthcare, for interference with and retaliation under the FMLA as well as disability discrimination in violation of the Americans with Disabilities Act (ADA).

Ms. Bertig failed on all of her claims. The federal district court ruled against her FMLA claims because only two of her absences were, by her own admission, in any way related to the medical diagnoses that triggered her FMLA leave. None of the reasons given for being absent on ten of those occasions would entitle her to FMLA leave. She had exceeded the absence policy by at least three days.

The court did find that Ms. Bertig qualified as a disabled person under the ADA. However, she could not show the court that her employer’s decision to fire her had anything to do with her disability. There was no evidence that Ms. Bertig had ever sought any accommodation for her disability. Thus, Ms. Bertig’s claim under the ADA also fell short. The employer was entitled to enforce its absentee policy when unrelated to her FMLA medical conditions and her disability.