An employee facing termination of employment requested FMLA leave. It didn’t save him from getting fired. Here’s why…

In a precedential decision issued on Friday, the Third Circuit Court of Appeals declined to reinstate a plaintiff’s trial court victory for FMLA interference, concluding that when he requested leave for migraine headaches, he did not yet have a serious health condition.

The plaintiff was a bus operator who had accumulated enough attendance points to warrant termination of employment. Notably, his final absence was due to a migraine headache. Subsequently, the employer held an informal hearing and recommended his discharge. But before the company terminated the plaintiff, he applied for leave under the Family and Medical Leave Act and sought medical documentation to support his claim. Despite this, the employer held a formal hearing and approved his termination. Then, the employee sued for FMLA interference and retaliation.

The lawsuit went all the way to trial, where the jury found in the plaintiff’s favor on his FMLA interference claim, awarding him $20,000 in economic damages. (The employer prevailed on the FMLA retaliation claim.)

The employer then moved for judgment as a matter of law, arguing that the plaintiff did not have a “serious health condition” under the FMLA at the time of his absence. The District Court granted the employer’s motion. So, the plaintiff appealed.

On appeal, the Third Circuit affirmed the lower court’s ruling, agreeing with the lower court that the plaintiff’s migraine headache was not a serious health condition when he missed work. Specifically, the plaintiff presented “no evidence of ever having visited a healthcare provider to treat for migraines before his termination and, apart from his visit to obtain FMLA paperwork, no evidence of visiting one after that.

Let’s be clear. Migraine headaches can be a serious health condition. And while it would not apply to the fact pattern here, an employer may retroactively designate employee leave as FMLA qualifying if the employer fails to timely designate leave as FMLA leave (and notify the employee of the designation).

However, in this case, and in others where employees miss work for purported medical reasons, the Third Circuit clarified that the “operative time for determining whether a particular condition qualifies as a serious health condition is the time that leave is requested or taken.” Conversely, “a patient does not have a ‘serious health condition’… if he waits to see a healthcare provider until after the relevant absences.”