Employers sometimes mistakenly focus only on theprovision that defines a serious health condition as one that incapacitates an employee for three calendar days or more.
They frequently overlook the part of the FMLA that adds any period of incapacity or treatment due to a chronic, serious health condition.
Don’t focus solely on illnesses of three days’ duration. If the employee has a brief flare-up of an underlying condition that has been treated in the past, he may be eligible for. 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, however, claiming he didn’t have any FMLA leave eligibility.
He sued, alleging FMLA violations. The company said his illness wasn’t covered because his illness 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)
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- Keep solid time records to prove whether employee is eligible for FMLA leave
- Follow the certification trail when you suspect employee is gaming medical leave
- Indefinite leave isn't a reasonable accommodation
- Is early termination OK when employee who is on FMLA submits her resignation?