Expert Legal Advice

Rockie · November 2001

Those of you who are very experienced or have legal background, are there any circumstances where one episode of absence would qualify a person for FMLA leave. For instance, an employee has a chronic absenteeism problem which is unrelated to FMLA issues. She has a newborn who she claimed to have taken to the emergency room for treatment (no hospital admittance, just emergency room treatment). Employee was terminated for chronic absenteeism, discounting taking the child to the emergency room. Employee claimed violation of FMLA and so I understand, won her case.

Is it true, based on just these facts, that this one episode of taking a child to the emergency room could qualify as FMLA leave?

I'd be interested to know if any of you could shed some light on this.

Thanks.

Down_the_Middle · November 2001

Rockie:
I've seen this a couple of times when the infants diagnosis in the ER was such that it required an on-going regimen of care by that particular provider (MD)--This typically happens in rural areas where the ER is staffed by Family Practice MD's who also provide follow-up care to the patient in the office. These are the only exceptions that I've encountered. The simple trip to the ER which does not result in admission nor an on-going treatment program has not constituted FMLA in my experience.

I got summary judgment a few months ago for a very similar situation where we discharged for absenteeism and the employee alleged FMLA violation for the ER trip which put the employee over the attendance threshhold. The judge ruled that the "single episode" did not constitute an FMLA issue-----'course our facts were certainly different from yours. MRG

System · December 2001

As D-t-M said, FMLA requires inpatient care or continuing treatment. But you can have continuing treatment without a follow-up office visit if you follow a treatment regimen that's more than bedrest and over-the-counter medicine -- 29 CFR 825.114(b). I've never seen a clear explanation of what that really means, tho.

If it's continuous treatment, you next ask if the patient is "incapacitated" for more than three days. But newborns are always incapacitated! I saw a case where a court tried to figure out whether a 3-year-old was incapacitated by an ear infection. The court said he probably was incapacitated because he was pretty much confined to bed and later had to have surgery. Juanita Caldwell v. Holland of Texas, d/b/a Kentucky Fried Chicken, No. 99-2382 (8th Cir. 2000).

This probably doesn't help much, but it doesn't hurt, either.

James Sokolowski
Senior Editor
M. Lee Smith Publishers

casals · December 2001

Did the HR person handling the dismissal check to see if the newborn's treatment was for a serious illness or injury and what length of time the mother was going to need to be off work to handle the situation? We probably would not dismiss an employee without understanding the full circumstances of the final absence just so we could protect ourselves from this kind of filing.

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