When deciding whether a person has a health condition that qualifies for, employers sometimes mistakenly focus only on the provision that defines “serious condition” as one that incapacitates an employee for three calendar days or more.
They frequently overlook the part of thethat adds any period of incapacity or treatment due to a chronic, serious health condition.
Advice: Remember both definitions. If employees have a brief flare-up of an underlying condition that has been treated in the past, they may still be eligible for FMLA leave. Discharging the employee may mean an expensive and protracted lawsuit.
Recent case: In the past, truck driver Roy Stickhost had received treatment for gallstones, including prescription medication. Stickhost began experiencing severe abdominal pain and called his doctor, who prescribed more medication. Stickhost’s wife then called her husband’s employer, explained that he was sick and that he might be passing a gallstone.
Stickhost was unable to work for just two days. The company terminated him.
He sued, alleging FMLA violations. The company said his illness wasn’t covered because it kept him away from work for only two days, not at least three.
The court sided with Stickhost, reasoning that his history with gallstones meant he had a chronic condition. After all, he had received past treatment and medication. That made him eligible for FMLA leave for any length of incapacity. (Stickhost v. 3-D Leasing, et al., No. 10-CV-03132, CD IL, 2010)