Coming Down With a Cold? Take Two Aspirin (and a FMLA-Protected Leave of Absence?)
July 19, 2007
Erika Royal- Ft Lauderdale
The Family and Medical Leave Act (FMLA) entitles an eligible employee up to 12 weeks of leave during any 12-month period if the employee has a “serious health condition that makes the employee unable to perform the functions of the position of such employee.” Recently, the Middle District of Tennessee demonstrated how the statute and regulations might be read to extend FMLA protections to an absence due to a condition as seemingly inconsequential as the common cold or flu. Stevens v. Advance Stores Company, Inc., No. 3-06-0537 (M.D. Tenn. 2007). The decision also demonstrates that employers must exercise caution in applying so-called “no-fault” attendance policies when the FMLA might be implicated.
The Facts
Janet Stevens was employed as a material handler at Advance’s warehouse facility in Gallatin, Tennessee, from September 1999 until her employment was terminated on January 13, 2006. Advance’s FMLA leave policy allowed eligible employees to receive up to 12 weeks of unpaid leave per calendar year, January 1 through December 31. Absences that were covered by the FMLA were not subject to the company’s progressive disciplinary procedures.
Advance also used a no-fault attendance policy under which its employees accumulated points for absences during a rolling 12-month period, with the points “dropping off” 12 months after receipt. Advance’s attendance policy was enforced through progressive discipline. An employee who accrued four points in a twelve-month period received a written warning; six points would result in a corrective interview; eight points would merit a final corrective interview; and, 10 points would result in termination of employment.
Stevens began to accumulate attendance points in March 2005 when she was late arriving to work and received one point. Over the course of the next six months, Stevens accumulated an additional eight points and, on August 8, 2005, she received a final corrective interview.
On September 12, 2005, Advance’s Employee Benefits Department granted Stevens’ request for intermittent FMLA leave due to depression. The intermittent leave covered the time period from August 8, 2005, to December 31, 2005.
On January 10, 2006, Stevens was absent because she was “sick.” She did not accrue any points for this absence because she had sufficient sick leave hours to cover the absence. The following day Stevens was scheduled to be off. On January 12, Stevens reported to work and began her scheduled shift, but her supervisor and the facility manager sent her home because she was perspiring heavily and had to leave the work floor on more than one occasion to vomit. Other employees expressed concern about working around Stevens, fearful they might catch whatever she had. Stevens went home, but did not visit a doctor on January 12. The next day, Stevens called in sick but, because she did not have enough sick leave hours accrued to cover the absence, she was assessed two points. This brought her point total to 11 points in a 12-month period, and Advance’s human resources assistant drafted a “termination recap” indicating that Stevens was terminated effective immediately.
Stevens went to a doctor on January 13 and was released to return to work without restrictions on January 14. However, her doctor prescribed four medications to treat her upper respiratory infection, pharyngitis, rhinitis and nausea. When Stevens returned to work on January 14, she was sent home and instructed to return on Monday, January 16. Advance’s attendance records for January 12 through 15 all indicated that Stevens was absent due to illness. When Stevens reported for work on January 16, she received and signed the termination recap form and was discharged. Stevens subsequently sued Advance, claiming that her absences in January 2006 were protected under the FMLA and that Advance (1) interfered with her right to take FMLA leave; and, (2) retaliated against her for using FMLA leave in connection with her January 2006 absences.
The Court’s Decision
The district court denied Advance’s motion for summary judgment, finding that genuine issues of material fact existed as to whether Stevens satisfied the FMLA’s notice requirement and whether she had a “serious health condition” within the meaning of the FMLA. The court noted that, to invoke the protection of the FMLA, an employee must provide notice and also a qualifying reason for requesting the leave. With respect to the notice issue, the court noted that Stevens had told the employer she was sick. Once she did so, it became the employer’s responsibility to determine whether the absence qualified for FMLA protection. By failing to adequately inquire before discharging Stevens based on the absences, the employer took the risk that later information would show the absences qualified for FMLA protection, the court said.
The Court also ruled that a jury could find that Stevens’ leave involved a “serious health condition” and qualified for protection under the FMLA. Whether Stevens’ leave qualified for FMLA protection was important because federal regulations dictate that employers may not use the taking of FMLA leave as a negative factor in employment decisions, nor may FMLA leave be counted negatively under a “no fault” attendance policy.
The regulations define “serious health condition” as “an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). Stevens’ facts could meet this standard, the court reasoned. Although the court noted that illnesses such as the common cold and flu do not usually constitute a serious health condition, it further reasoned that “such conditions can be ‘serious’ if complications arise.” After all, the court reasoned, the FMLA itself defines “serious health condition” to include “one lasting more three or more days” and involving “continuing treatment,” which can be as simple as a course of prescription medications.
The court noted that Stevens was treated by her doctor and diagnosed with an acute upper respiratory infection, pharyngitis, allergic rhinitis and nausea with vomiting. To combat these ailments, her doctor prescribed Augmentin, Viscous Lidocaine, Zyrtec D and Phenergen. This evidence, the court concluded, could support a claim that Stevens was on a treatment regimen prescribed by her physician within the meaning of the FMLA and its interpreting regulations. Furthermore, the court found, a jury might also determine that Stevens had been ill for more than three consecutive days, as required for leave to be protected by the FMLA. Accordingly, the court allowed Stevens’ FMLA claim to go to a jury trial.
The Lesson
This case, while perhaps an analytical anomaly, highlights a few important reminders for employers. First of all, even a facially neutral attendance policy can implicate the FMLA if an employee’s FMLA leave is negatively considered in connection with an attendance-related employment decision. The burden is on the employer to clarify any ambiguity surrounding an employee’s request for any type of leave of absence. Any question as to whether an employee requested a leave that qualifies for FMLA protection is likely to be resolved in favor of the employee. Additionally, this decision reminds employers that they must analyze each absence to determine whether an employee is suffering from a “serious health condition” entitling that employee to FMLA protected leave. Supervisors should be trained not to discharge any employee based on an absence of more than three days without referring the issue to the human resources department to analyze whether the FMLA applies.
For more information, email Erika Royal at erika.royal@hklaw.com or call toll free, 1-888-688-8500.