Serious Health Conditions, Right To Reinstatement And Disciplining Absenteeism

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August 22, 2018
Author: Christine S. Keenan
Organization: The Kullman Firm

A. What is a Serious Health Condition
An employee is unable to perform the functions of his job when a health care provider determines the employee cannot work at all or cannot perform the essential functions of his job. 29 C.F.R. §825.113. A serious health condition under the FMLA is an illness, injury, or physical or mental condition that involves either “inpatient care” or “continuing treatment” by a health care provider. 29 U.S.C. §2611(11). Inpatient care includes an overnight stay in a medical facility or any period of incapacity such as an inability to work or perform other regular daily activities caused by the serious health condition. 29 C.F.R. §825.114(a)(1).

Continuing treatment by a health care provider includes any period of incapacity of more than three consecutive calendar days plus either (a) two or more treatments by a health care provider, or (b) one treatment by a health care provider that results in a regimen of continuing treatment under his supervision. 29 C.F.R. §825.115. A regimen of continuing treatment includes a course of prescription medicine or therapy requiring special equipment to alleviate the condition. 29 C.F.R. §825.115. A regimen of continuing treatment does not include taking over-the-counter medication or other activities, such as bed rest, which an employee can undertake without seeing a physician. Id. It does include, however, any period of incapacity due to pregnancy or for prenatal care. Continuing treatment also includes chronic conditions requiring treatment, that is any period of incapacity due to a chronic serious health condition that (a) requires periodic visits or treatments by a healthcare provider or nurse or physician’s assistant under the direction of the doctor, (b) continues over an extended period of time, and (c) may cause episodic rather than a continuing period of incapacity, e.g., epilepsy. Any period of absence relative to multiple treatments by a healthcare provider, even thought the condition is non-chronic, constitutes a continuing treatment if it involves restorative surgery or is a condition that would likely result in more than three or more consecutive days absence without medical intervention. 29 C.F.R. §825.115.

Treatment includes examinations to determine if a serious health condition exists and evaluation of that condition. 29 C.F.R. §825.115. Routine physical examinations, eye examinations or dental examinations, however, are explicitly not included as treatments. 29 C.F.R. §825.113.

In Jones v. Denver Public Schools, 11 WH Cases2d (BNA) 67 (10th Cir. 2005), the court held that a telecommunications technician who had a single treatment for back pain was not protected by the FMLA because his medical condition was not serious or continuing. Section 2612(a)(1)(D) requires a period of incapacity that involves treatment two or more times by a health care provider and results in a regimen of continuing treatment. To qualify for FMLA protection, the serious health condition must be sufficiently serious that it entails an absence of more that 3 consecutive calendar days, during which time the employee obtained treatment by a healthcare provider at least 2 times (or one time followed by a regimen of continuing treatment).

Unless accompanied by further complications, minor illnesses such as the common cold, the flu, upset stomachs, minor ulcers, ordinary headaches (non-migraines), and routine dental or orthodontia problems do not meet the definition of a serious health condition. Such minor illnesses will not qualify as serious health conditions even if they last for more than three days. 29 C.F.R. §825.113(d). Thus, common cold, flu, upset stomachs and minor ulcers may constitute a serious health condition where an individual is incapacitated for more than three consecutive calendar days and receives the required continuing treatment from a health care provider. W&H Opin. Ltr., FMLA-86, Dec. 12, 1996. Also, asthma and migraines are considered by the Department of Labor to be serious health conditions even though treatment for such conditions may be brief. W&H Opin. Ltr., FMLA-57, July 13, 1995.

Substance abuse may be a serious health condition if the conditions otherwise meet the parameters of Section 825.113-115. FMLA leave may only be taken for treatment of substance abuse by a heath care provider. 29 C.F.R. §825.119. It may not be used because of the employee’s use of the substance. Id. Absences attributed to pregnancy (or prenatal care) or a chronic serious health condition qualifies for FMLA leave even though the employee or immediate family member does not receive treatment from a healthcare provider during the absence, or even if the absence does not last more than three days. 29 C.F.R. §825.120. For example, asthma attacks, morning sickness or advice to stay at home during high pollen counts can constitute a serious health condition. 29 C.F.R. §825.115. In Marchisheck v. San Mateo County, 199 F.3d 1068 (9th Cir. 1999), cert. denied, No. 99-1635 (June 5, 2000) the Ninth Circuit held that the emotional and physical problems that an employee’s son suffered as the result of an assault did not qualify as a serious health problem under the FMLA. Moreover, a note she supplied from her son’s psychiatrist that stated that it would be in the son’s best interests for him to live in the Philippines was not a proper certification of her son’s condition under the FMLA.

Accordingly, the employer was not required to request an independent certification and was not estopped from contesting the severity of the son’s injuries. Even if his condition did qualify, his mother’s taking him to the Philippines to reside with relatives did not qualify as “caring for” him since we was not going to receive any special medical or physical treatment.

B. Right to Reinstatement
Upon return from FMLA leave, an employee is entitled to be returned to the same position the employee held when the leave commenced or to an equivalent position with equivalent benefits, pay, duties, hours, responsibilities and other terms and conditions of employment. 29 C.F.R. §§825.214-825.219. The requirement that an employee be restored to the same or to an equivalent position includes overtime opportunities, shifts, schedules, and the right to be restored to the same or geographically proximate worksite. If an employee is no longer qualified for a position upon returning from leave because s/he was unable to take the necessary continuing education courses or meet other licensing requirements, the employee must be given a reasonable opportunity to fulfill those conditions upon return to work.

At the end of a leave, benefits must be resumed in the same manner and at the same levels as provided when the leave began. Employees cannot be required to requalify for any benefits. Accordingly, employers may find it necessary either to modify some benefit plans or programs in order to be able to restore employees to equivalent benefits or to make arrangements for continued payment of costs to maintain such benefits during family leave. If an employee is unable to perform the essential functions of his/her prior position because of a physical or mental condition, the employee has no right to restoration to another position under the FMLA. However, the employer must meet the obligations of the Americans with Disabilities Act, e.g., reasonable accommodations.

An employee on FMLA leave has no greater right to reinstatement than if the employee had been continuously employed during the FMLA leave period. For example, an employer who can demonstrate that an employee would otherwise have been laid off but for being on leave may deny reinstatement.

Key employees (defined as salaried employees who are among the highest paid 10% of all employees within 75 miles of the employee’s work site) may be denied job restoration (but not FMLA leave) if denial of restoration is necessary to prevent substantial and grievous economic injury to the operations of the employer. 29 C.F.R. §825.217. The employer must demonstrate that restoration, not the absence of the employee, will cause such substantial and grievous economic injury. Employers must give written notice in person or by certified mail to a key employee at the time FMLA is requested or at the time the leave commences if earlier, that the individual qualifies as a key employee and also must inform the employee of the potential consequences if the employer determines that injury to the employer’s operations will result from reinstatement. Failure to provide such notice will eliminate the employer’s right to deny such reinstatement.

As soon as the employer makes a good faith determination based on all available facts that substantial and grievous economic injury will result from reinstatement of a key employee, the employer must notify the employee in writing in person or by certified mail of its determination. The notice must explain the basis for the employer’s finding that substantial and grievous economic injury will result and must provide the employee reasonable time in which to return to work. If the key employee does not return to work in response to the notice, the employee nevertheless continues to be entitled to the maintenance of health benefits and the employer may not recover its cost of health benefit premiums.

C. Exceptions to Reinstatement
In Bedor v. Friendly’s Ice Cream Corp., 10 WH Cases2d (BNA) 1856 (D.C. Conn) 2005) the court held that it was a fact issue as to whether the employee suffered an adverse job action when, upon his return from FMLA leave for cancer treatments, he was assigned to a district much further from his home that was composed of poorer performing restaurants, and then was assigned to a temporary district manager’s position, and then fired (after 3 months). Because another manager was terminated because of a leave of absence, the court held that the actions of the employer could be an adverse job action. But, what about returning the employee to the equivalent position?

In Brumbalough v. Camelot Care Center, 10 WH Cases2d (BNA) 1761 (6th Cir. 2005), the employee provided her employer with a return to work note from her doctor written on a prescription pad. The court held this was sufficient and the employer was required to reinstate the employee to work. If the employer felt the note was insufficient, it should have sought clarification from the doctor. Even though the FMLA permits employers to require a fitness-for-duty certification prior to reinstatement, the certification need only be “a simple statement” of an employee’s ability to return to work. In McBurney v. Stew Hansen’s Dodge City, 10 WH Cases2d (BNA) 545 (8th Cir. 2005), the former night service manager was returned to a day-shift quality-control position upon his return from FMLA leave. He was then moved to a service-advisor job.

He failed to show that the changes in positions constituted a violation of the FMLA because he failed to prove that he suffered any damages as a result of being transferred. He had the same pay and benefits, and there was no causal link between the taking of the medical leave and the company transferring him from one job to another.

D. Discipline without Violating the FMLA
In Callison v. City of Philadelphia, 10 WH Cases2d (BNA) 993 (3rd Cir. 2005), the court held that the employer did not violate the FMLA when it terminated an employee for violating the city’s sick leave policy, even though the leave qualified for FMLA leave. The city’s policy required employees taking sick leave to call in if they left home during the work hours. While the employee was taking sick leave (and FMLA leave), he left his house during work hours and failed to call in. The employer suspended him. The employee’s assertion that during his FMLA leave he “should be left alone” was in error, because many provisions of the FMLA require continued contact between the employee and employer during the leave, such as, certification requirements and keeping the employer notified of changes in circumstances.

In Throneberry b. McGhee Desha County Hosp., 10 WH Cases2d (BNA) 807 (8th Cir. 2005), the employee sought to hold the employer strictly liable for a violation of the FMLA because she was terminated during her FMLA leave. The employer argued that it would have fired the employee for erratic behavior even if she had not taken FMLA leave. The FMLA does not force an employer to retain an employee on FMLA leave when the employer would not have retained the employee had she not taken the FMLA

In Spraggins v. Knauf Fiber Glass GmbH, 11 WH Cases 2d (BNA) 76 (M.D. Ala. 2005), the court held that an employee who was fired for staying home with his wife who was experiencing difficulties with her pregnancy could proceed with a claim under the FMLA. Even though the employee violated the company’s call-in policy, the employee argued that the rule was “illegally” applied. The regulations require that the employee provide advance notice, if practical, and the court determined that there was a fact issue as to whether it would have been practical for the employee to give notice of his absence one hour before his shift.

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