State, Dept. of Labor and Employment Sec. v. Jones, 94-721

• Decision Date: 22 May 1995
• Docket Number: No. 94-721,94-721
• Citation: 660 So.2d 282
• Parties: 131 Lab.Cas. P 33,389, 20 Fla. L. Weekly D1265, 3 Wage & Hour Cas.2d (BNA) 286, 3 Wage & Hour Cas.2d (BNA) 288, 7 NDLR P 59 STATE of Florida, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Appellant/Cross-Appellee, v. Elaine C. JONES, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 282

660 So.2d 282

131 Lab.Cas. P 33,389, 20 Fla. L. Weekly D1265,

3 Wage & Hour Cas.2d (BNA) 286,

3 Wage & Hour Cas.2d (BNA) 288, 7 NDLR P 59

STATE of Florida, DEPARTMENT OF LABOR AND EMPLOYMENT

SECURITY, Appellant/Cross-Appellee, v. Elaine C. JONES, Appellee/Cross-Appellant.

No. 94-721.

District Court of Appeal of Florida,

First District.

May 22, 1995.

Order on Rehearing Aug. 21, 1995.

Rehearing Denied Oct. 3, 1995.

Edward A. Dion, Gen. Counsel, Tallahassee, for appellant/cross-appellee.

Vernon T. Grizzard, Tallahassee, for appellee/cross-appellant.

BARFIELD, Judge.

In this appeal and cross-appeal of an order of the Public Employees Relations Commission (PERC), the Department of Labor and Employment Security (DLES) challenges PERC's determination that Elaine C. Jones' absence from employment at DLES from June 21, 1993, to July 7, 1993, did not constitute a separate offense occurrence for purposes of future discipline, and contends that PERC abused its discretion by awarding Jones full attorney fees. On cross-appeal, Jones contends that PERC erred in determining the issue was not, as stated by the hearing officer, whether her absences were excused under the Family and Medical Leave Act, 29 U.S.C. Sec. 2601 (1993) (the FMLA or the Act). We find no basis for reversal on the issues raised on appeal. However, we reverse on the issue raised on cross-appeal, and remand the final order to PERC for determination of whether, under the provisions of the FMLA, Jones may be disciplined for her August 1993 absences, including whether the hearing officer correctly determined that Jones did not provide DLES with proper notice under the Act.

On March 23, 1993, Jones began treatment for clinical depression with Dr. Steele at the Tallahassee Pain and Stress Management Institute (the Institute). A July 13, 1993, letter from the Institute stated that Jones "has been suffering from severe depression for the past several weeks" and that she was being treated. Thereafter, the doctors determined that her depression was more serious than previously thought and prescribed anti-depressant medication. She continued weekly counseling sessions with Dr. Steele. On July 26, Jones presented DLES with a letter from the Institute stating that she appears to suffer from organically-based clinical depression. She requested that DLES provide her with a reasonable accommodation for her disability. The parties began negotiating the terms of an agreement, which DLES never executed, but which would have allowed her to keep her job if she continued her medication and counseling sessions, and continued to report to work. Jones was absent from work August 9 through August 13 and August 16 through August 18; she called into work before 8:30 AM each day to say she was ill. She was having a depressive episode and Dr. Steele was on vacation, but she finally saw Dr. Chlopan at the Institute on August 12. He increased her dosage of the anti-depressant and saw her again on August 17. She was not paid sick leave for the days she was absent.

Jones' prehearing statement asserted that her August 1993 absences were for medical reasons, that DLES was so informed each morning of her absence, that her dismissal was accomplished without the required notice and predetermination conference, and that her dismissal for excessive absences "is in violation of the accepted legal principle of reasonable accommodation and of the new federal Family and Medical Leave Act of 1993 (effective August 5, 1993)." The FMLA requires employers to allow eligible employees up to twelve workweeks leave (generally unpaid) in any twelve-month period for, inter alia, "a serious health condition" which involves "continuing treatment by a health care provider" and which makes the employee unable to perform the essential functions of the job. At the evidentiary hearing, Dr. Steele testified to Jones' diagnosis, treatment, and prognosis. She characterized the clinical depression as a "serious health condition," but was optimistic about treatment and noted that Jones was motivated to work. She expressed her willingness to meet with DLES to further discuss Jones' condition.

In his recommended order, the hearing officer rejected Jones' contention that she was protected by the FMLA, finding that there was no evidence that she ever notified DLES that she was invoking the Act. In its final order, as to Jones' contention that her August absences were excused by the FMLA, PERC found that this was not the issue, noting that "excessive absence" is defined in the personnel manual, in pertinent part, as "[a]n attendance record of recurring absence, even though all or a majority of the absences were necessary and/or excused." Fla.Admin. Code R. 38A-15.001(15).

Under the FMLA and the federal regulations relating to it, the employer may choose to require the employee to use sick or annual leave, may require certification from the health care...