To Grant Leave or Not to Grant Leave…That is the Question

Employers covered by the Family and Medical Leave Act often are surprised to find out that the onus is on them to provide eligible employees notice of FMLA rights in the event of a qualifying absence and to properly designate that absence as leave under the FMLA.  (As if employers don’t have enough on their plates…)

The FMLA entitles an eligible employee to leave if the employee has a “serious health condition that makes the employee unable to perform the functions of the position of such employee.”

Well, what does that mean?
A “serious health condition” is “an illness, injury, impairment or physical or mental condition” that involves either “inpatient care” or “continuing treatment” by a health care provider.

Continuing treatment” includes a “period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also involves” (1) treatment two or more times within 30 days of the first day of incapacity or (2) treatment on one occasion that results in a regimen of continuing treatment under the supervision of a health care provider.

So, what does that mean?
Say you have an employee who is feeling lousy because of unregulated high blood pressure and who leaves work, goes to the doctor, gets a prescription for blood pressure medication, and stays off of work for a few more days – is that sufficient to bring the FMLA into play?

The Eighth Circuit recently took up that question in Johnson v. Wheeling Machine Products, et al., No. 13-3786 (Feb. 20, 2015).

The employee in Wheeling left work with blurred vision, a stiff neck, back pain, and a “major headache,” feeling as though his head would “explode.”  (Hmmm… I wonder if he’d just had a conversation with opposing counsel – that’s usually what does it for me.)  The employee went to a clinic and saw a doctor, who prescribed blood pressure meds and told the employee to follow up with his regular physician (but didn’t say when the employee should do that).  The doctor also gave the employee a note stating that the employee could return to work in four days, but did not say why the employee needed to be absent.

The employer rejected the note, and after the clinic refused to provide more details about the absence, the employer terminated the employee.

The employee thereafter saw his regular doctor, who determined that the employee’s blood pressure was normal and that he did not need medication.  (Don’t you hate when that happens?  It’s like when your car engine makes this strange clunky noise, but you finally get it to a mechanic and the thing purrs like a kitten.)

The employee filed an FMLA action, alleging that his employer failed to provide sufficient notice of his FMLA rights, retaliated against him for taking protected leave, failed to reinstate him following protected leave, and otherwise interfered with his FMLA rights.

In considering the failure to reinstate claim, a threshold issue was whether the employee was entitled to leave at all.  In a rather technical analysis, the court held that while the employee had alleged that he was treated twice by a physician for his blood pressure, he did not establish that the doctor’s visits both occurred within thirty days of his first day of incapacity.  Moreover, at his initial doctor’s visit, the doctor gave no indication as to when the employee should follow up with a doctor (under the regs, it is the doctor – not the employee – who determines both whether an additional visit is necessary and when that visit should occur).

Further, the fact that the employee was given medication was insufficient in itself to establish a “regimen of continuing treatment” because that “regimen” was not “under the supervision of the health care provider.”  The court held that the “supervision” component was necessary to avoid expanding FMLA coverage to minor health problems.

The court finally held that, even if the employer failed to provide the employee with notice of his FMLA rights, the employee didn’t have a claim because he was not entitled to FMLA leave in the first place.

Result?  Employer: 1, Employee: 0
When an employer is presented with an employee absence that is potentially covered by the FMLA, it should tread carefully.  The employer in Wheeling, in a sense, lucked out because the employee took a rather nonchalant approach to his own condition and treatment.  Even if the employee’s blood pressure issue was episodic, had the employee originally gone to his regular physician instead of a clinic, he very well may have satisfied the definition of “continuing treatment” and the case would have had a different result.

Employers should err on the side of caution when deciding whether to notify employees of their FMLA rights and consult counsel if they have any questions regarding whether an employee is eligible for and/or entitled to leave under the FMLA.

Or else be prepared to suffer the slings and arrows of outrageous litigation.


Carmon Harvey (Bio | LinkedIn) is a shareholder resident in the Newark and Philadelphia offices. Carmon has run more than 25 marathons, which allows her to indulge in her second and third most important hobbies: eating lots of delicious food and drinking great craft beers.

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