The next time you consider a request for leave under theAct ( ), remember this: For employees to be covered under the FMLA for their own "serious condition," they must be undergoing medical care or continuing treatment at the time of their request.
As the following case shows, just because an employee has symptoms that eventually lead to a qualifying serious condition, that won't be enough to earn him protection under the law.
Recent case: A truck driver for a beer and wine distributor was fired for excessive. The driver blamed his repeated absences on a shoulder injury he suffered while lifting the beverage cases at work.
He sued, saying his absences should have been covered under the FMLA because they were caused by an injury that eventually became a "serious health condition" after he was fired.
But a district court dismissed his case, saying his shoulder injury didn't qualify as a "serious condition" because, at the time the driver was fired, he wasn't hospitalized, wasn't receiving treatment from his doctor and wasn't taking any medication. Although the shoulder condition ultimately led to disabling surgery, the treatment didn't occur until weeks after his termination. (Merritt v. E.F. Transit Inc., No. IP 02-0393-C, S.D. Ind., March 11, 2004)
Free report: For more advice on this topic, subscribers can access our free report, How to Define a Serious Condi-tion Under the FMLA, at www.you-and-the-law.com/extra.