In early 2020, an employee at a global food supplier left work early with flu-like symptoms. That day she obtained a doctor’s note recommending that she “stay out of work for three days, from February 19-21, 2020.” The employee requested to have five days off to recuperate. However, the note said nothing about her inability to work beyond those three days. Her employer terminated her on February 21.
The employee subsequently became a plaintiff and brought claims under the Family and Medical Leave Act. Specifically, she claimed that the defendant interfered with her FMLA rights by terminating her employment.
To prevail on her FMLA interference claim, the plaintiff had to show that she was entitled to FMLA leave because, you know, duh.
The defendant never offered her leave under the Family and Medical Leave Act. And for good reason. Let’s check the rules, shall we?
Under the FMLA, a “serious health condition” includes any “illness, injury, impairment, or physical or mental condition that involves . . . continuing treatment by a health care provider.” One way to demonstrate a serious health condition based on continuing treatment is to show that the underlying condition involves a “period of incapacity of more than three consecutive, full calendar days.”
Was the plaintiff incapacitated for more than three days? Not according to her primary piece of evidence: the doctor’s note. It said that she would miss work for three days and no more.
But what about her five-day leave request? That’s not dispositive because a “serious health condition” turns on an objective inquiry into the need for “continuing treatment by a health care provider” and the duration of her incapacity. Indeed, she testified at deposition that she could have worked on the third day of her absence.
The plaintiff also testified that she returned to the emergency room on March 18, 2020, with COVID-19-like symptoms as evidence that she was sick for a month straight. What about that?
Well, here’s the thing—the period of incapacity did not span consecutive days. The plaintiff testified that her symptoms from February 2020 resolved before she got sick again, demonstrating that she was not continuously incapacitated for that entire period.
No FMLA interference. Case dismissed.
Kramer said it himself, “Hey, a rule is a rule. And without rules, there’s chaos.”
You can read the entire Second Circuit decision here.
Generally, the FMLA does not cover flu-like illnesses unless particularly severe (think: overnight emergency room stay). There’s no harm in providing FMLA paperwork, but leaves should not be treated as such unless employees are eligible to take the leave and provide supporting medical certification. Otherwise, it’s considered a regular absence.