World's worst boss? and a big FMLA loophole

"No more of your flimsy excuses! Get back to work!"

Last week, while I was consumed with assessing the candidates for the Supreme Court nomination that went to Judge Brett Kavanaugh, this happened.

A convenience store employee in Michigan texted her boss, and said that she was unable to work as scheduled.


Her 18-year-old son was was on life support at a children's hospital affiliated with the University of Michigan.

(Sounds fairly legit.)

The employee told her boss that she wasn't sure when she would be able to return, but that she'd let the boss know as soon as her son got better.

The manager's compassionate response:

That isn't how we do things, so I'll accept that you're quitting. . . . If you can't come to work that's you quitting."


There is no reason you can't work, and I will not tolerate drama. End of conversation. If you aren't there to work your shift tomorrow, then I take that as you've quit."

I hate "drama" as much as the next person, but having your kid on life support is genuine drama.

Of course, the employee shared the screen shots of the text exchange on Facebook, and it went viral, and the employer -- PS Food Mart -- terminated the manager and assured the employee that she was welcome to take as much time as she needed. The employee says she loves her job and apparently doesn't plan to take any action against her employer. 

Our legal spinach for the day

It wasn't clear whether the employee would have been eligible for leave under the Family and Medical Leave Act. First, we don't know whether she'd worked 1,250 hours in the past 12 months and been employed for at least one year. Also, we don't know whether the employer had at least 50 employees within a 75-mile radius of the store.

We can say for sure that the kid has (or had -- I hope he is out of the woods by now) a serious health condition. 

But here is the giant loophole: The son was 18 years old, meaning that the mother could not take FMLA leave for his serious health condition unless he was also incapable of self-care because of a mental or physical disability. The son was definitely incapable of self-care while he was in a hospital on a freakin' ventilator. But the suspected condition was cellulitis sepsis, which I suspect is an acute condition. Meaning very serious, but not necessarily long-term. 

If the condition that put him on life support was relatively short-term, and assuming no lingering aftereffects, then it wouldn't be a "disability," and the mother would not qualify for FMLA leave (even if she met all the other requirements of the law) unless her son had some other condition in addition to the sepsis that was "disabling." 

If he'd been under 18, it would have been a different story. In that event, the cellulitis sepsis (or whatever it was) would more than suffice for FMLA purposes. 

Even if this employee's requested leave didn't technically meet FMLA requirements, employers in this situation should of course offer whatever non-FMLA leave they can -- personal leave may apply, and some employers even offer it with pay. I'm glad to see that the employer in this case did the right thing by its employee and her son, FMLA or no FMLA.

Image Credit: From flickr, Creative Commons license, by Kumar Appaiah.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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