When is “Treatment” actually treatment under the FMLA?
Imagine that your employee who has been diagnosed with anxiety and chronic back pain asked for FMLA leave for an afternoon doctor appointment. Your employee had already provided a doctor’s certification that his condition required periodic treatments but the afternoon appointment was with a different doctor. So, you grant the FMLA leave for the appointment. But later when you find out that he took the entire day off you started looking into what he did that day. It turns out that in the morning he went to the first doctor’s office to make sure his records were being sent to the other doctor’s office where his afternoon appointment was scheduled. In the morning he saw the first doctor in the lobby and got a refill on two of his prescriptions but he was neither examined nor evaluated while he was there.
Now, with these findings you are confronted with a tricky decision. Your company has an absence point system that would mean that this employee would have accumulated enough points to be fired if the morning visit to the doctor’s office was not counted as FMLA leave.
What would you do?
Well, this scenario was actually confronted by a company in Indiana. The company didn’t charge points and gave the employee the benefit of the doubt that he had called in his absence (as he was required to do, but there was no evidence of the call) and that he had actually asked for the whole day off for FMLA leave, and not just the afternoon as the company’s FMLA administrator had understood. Although those two possible failures were not counted as points against him, the company did count the morning doctor visit against him as “personal business” and not excused FMLA leave. Those morning absence points put him over the top and he was fired in accordance with the attendance policy.
He sues under the FMLA. He loses.
Why does the employee lose his FMLA claim?
In affirming a summary judgment for the company the Seventh Circuit gave the FMLA regulations dealing with the definition of “treatment” – – the full treatment. The court held that the morning doctor visit where he merely saw the doctor with no appointment, no examination or evaluation and only got a prescription refill was not “treatment” as that term is defined by the FMLA. Indeed, referring to the text of the regulations the Court concluded that for an employee to be eligible for FMLA leave for treatment – the employee must be absent from work to receive the treatment. In other words, if the employee’s absence is for unnecessary treatment, or for no treatment at all, then the employee is not eligible for FMLA and is not protected. In order to be eligible the FMLA requires the employee to be unable to perform the job functions. The fact that he briefly saw a doctor that morning and refilled a prescription might suggest that the employee had a serious health condition and that he even needed continuing treatment for that condition – – but, according to the Court, it is not evidence that he received treatment that required him to be absent from work that morning.
So what is Treatment?
The Court’s decision is very interesting and nuanced. Employers can take these tips from the Court and consider them in the event an employee claims to be absent for “treatment” when the absence is not really necessary:
- Treatment is not merely picking up a prescription refill note;
- Treatment is not merely seeing a health care provider if there is no examination or evaluation;
- Treatment is not calling to make an appointment;
- Treatment is not scheduling treatment;
- Treatment is not arranging referral of records to another doctor; but
- Treatment is a health care event that requires the employee to be absent from work.
In this case the company took a risk in firing the employee and faced years of litigation. But it turned out that it was the right call – at least from the legal point of view. Nevertheless, it would be wise to consider both the legal and the practical aspects of challenging the “treatment” an employee received before taking any adverse action. Remember also, the ADA may come into play if the employee could argue that he was treated differently because of a perceived “disability.”
Reference: Jones v. C&D Technologies, (7th Cir. No. 11-3400, June 28, 2012).
Please contact Steve Lyman at slyman@wp.hallrender.com or your regular Hall Render attorney.
