Three-Year Old's Ear Infection May Be A "Serious Health Condition" Under The FMLA
 
July 1, 2000
 

The Eight Circuit Court of Appeals, (which presides over Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota), recently reversed entry of summary judgment to an employer finding that it was for the jury to decide whether the ear infection of an employee’s son constituted a “serious health condition” under the Family Medical Leave Act (FMLA), thereby entitling the employee to an unpaid leave.

In Caldwell v. Holland of Texas, Inc. d/b/a Kentucky Fried Chicken, (8th Cir. 2000), Juanita Caldwell was a KFC employee of over three years with an excellent record and a single mother caring for her three-year-old son. On June 7, 1997, Caldwell missed work in order to take her son, who had a high fever and pain in his ears, to the doctor. Caldwell had obtained permission to do so from her assistant manager. The doctor informed Caldwell that her son had an acute ear infection and to avoid permanent hearing loss, her son probably required surgery. The doctor prescribed a 10-day course of antibiotics and a two-day decongestant and informed Caldwell to make a follow-up doctor’s appointment. When Caldwell arrived to work on Monday, she was immediately fired. Caldwell filed suit against KFC alleging that KFC violated the FMLA by terminating her.

Pursuant to the FMLA, eligible employees are allowed to take up to 12 workweeks of unpaid leave each year for, among other things, “serious health conditions” that afflict their immediate family members. A “serious health condition” occurs when a family member suffers an “‘illness, injury, impairment, or physical or mental condition’ that requires ‘inpatient care’ or ‘continuing treatment’ by a health care provider.”

The only issue before the Eight Circuit was whether Caldwell’s son received continuing treatment. Continuing treatment occurs when the person experiences “[a] period of incapacity of more than three consecutive calendar days’ and then receives subsequent treatment, or experiences further incapacity relating to, the same condition.” “The subsequent treatment must include, either, ‘[t]reatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.”

Pursuant to the regulations, incapacity may be determined from “inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment thereof, or recovery therefrom.” Therefore, what constitutes incapacity of a three-year-old is not directly covered by the regulations because a three-year-old normally does not work or attend school. Thus, the court determined that the fact finder must decide whether the child’s normal activities were demonstrably affected by the illness.

Pursuant to Caldwell’s affidavit, her son remained at home under the constant care of family and under prescribed medicines for more than three consecutive days. Furthermore, according to medical records, the ear infection was a continuing, persistent condition that led to surgery on July 17, 1997. If this pre-operation activity did not equate to incapacity, the court found that the period after the surgery did, because the record clearly showed that the inflammation and infection in Caldwell’s son’s ear resulted in a period that constituted incapacity for more than three consecutive days.

Pursuant to the regulations, “subsequent treatment” is shown if the patient undergoes “[t]reatment two or more times by a health care provider… or [t]reatment by a healthcare provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.” The court found that enough evidence was presented of subsequent treatment to defeat summary judgment because Caldwell’s son was treated by two doctors, had antibiotic treatments and at least two postoperative medical visits.

The court explained that the purpose of the FMLA is to help working men and women balance the demands of work and home life so as not to have to choose between work and caring for a family member with a serious health condition. Thus, the law requires courts to consider the severity of the individual’s illness in order to avoid such a choice. The court, therefore, held that Caldwell’s son’s condition, which required surgery to prevent permanent deafness, raised at least a question of fact for a jury determination as to whether, under the regulations, it was “serious.”

For more information please contact Dawn Schiller Williams at 1-888-688-8500 or dswillia@hklaw.com.

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