The FMLA makes it unlawful for any employer to deny leave or other benefits provided by the act, or to discriminate against any employee for taking FMLA leave or opposing any practice made unlawful by the FMLA. The approval of sick leave, especially non-emergency medical, dental, or optical purposes however, remain at the discretion of the company, regardless of whether the employee provides valid reasons or acceptable medical documentation. The duration of the leave depends on the severity of the condition, and the assessment of severity again depends on managerial discretion. Employers can impose any restriction or condition to FMLA leave, and can discipline employees who fail to adhere to such conditions, provided such conditions do not diminish the employees' FMLA rights.
The major sick leave discrimination issue is contextual approval. Approving the sick leave application for one employee and rejecting the sick leave application for another employee, is apparently discrimination, even when the reasons for the leave and the context may differ.
The FMLA allows employees to take sick leave for serious health conditions that makes them unable to work; birth and care of a newborn child of the employee; caring for a spouse, son, daughter, or parent with a serious health condition; and some other conditions. Companies looking to avoid discrimination charges need to draw up a comprehensive leave policy and make explicit the specific medical and non-medical conditions that become eligible for sick leave, and the number of days of leave entitled for each such condition. The leave policy also needs to specify the nature of documentation required, such as medical certifications, bills, or any other proof for each such condition.
At times, companies may deny sick leave requests to employees owing to business needs. A comprehensive leave policy specifies the nature of demands that may make the company reject sick leave requests, even when the employee may be otherwise entitled to such leave.
The leave policy also needs to include other clauses and conditions related to the leave. The FMLA, for instance requires employees to provide 30 days advance notice before taking sick leave, whenever possible, and incorporation of such clauses in the leave policy makes it a comprehensive whole and a one-point reference point for managers when processing leave applications.