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RECENT FMLA CASE UNDERSCORES NEED TO DETERMINE
REASON FOR ABSENCES
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Employers should determine whether an employee’s absenteeism is protected by the
Family and Medical Leave Act ("FMLA") before making termination decisions.
That’s the lesson to be learned from a recent Third Circuit Court of Appeals decision
in Victorelli v. Shadyside Hospital, No. 96-3567, 11/3/97. The court determined that the
FMLA regulations defining serious health condition refer not only to an impairment which
results in the employee’s continual incapacity but also to one which may result in
occasional incapacity. The Third Circuit remanded the case to the district court to
determine if the employee’s peptic ulcer disease is a "serious health
condition" under the FMLA and if her dismissal for absences because of the ulcer
violated the FMLA.
The employee worked for Shadyside Hospital from 1989 to 1994, during which time she
frequently was tardy and developed a pattern of "Monday-Friday" absences for
illnesses. She was diagnosed with peptic ulcer disease in 1992 and began treatment of the
disease, which included prescription medication and periodic visits to her doctor. In
addition to the ulcer, the employee frequently had sinusitis and ear infections. Two
months before the employee’s dismissal, her supervisor warned her that she would be
terminated for any further absences. The hospital then discharged the employee for
violation of its attendance policy two days following another absence because of the
peptic ulcer. During her employment, the employee received favorable performance
evaluations, and while the hospital was aware of the peptic ulcer condition, it never
required medical documentation. The employee claimed the termination action violated the
FMLA. The district court concluded the employee’s condition was a "minor
ulcer" and therefore was not covered by the definition of serious health condition
under the FMLA regulations.
The Third Circuit Court disagreed with the lower court and determined that the
employee’s peptic ulcer, which required occasional visits for treatment by a health
care provider, may fit the FMLA definition of a "serious health condition." In
making this determination, the court considered the employee’s multiple visits to her
physician, the three-year duration of the condition, and her periodic incapacity resulting
from the disease. The court concluded that the FMLA protects not only those whose
condition results in continued incapacity to work but also "those who are
occasionally incapacitated by an on-going medical problem."
This case illustrates the employer’s need to consider the employee’s
medical-related absences on a case-by-case basis. First, employers should determine
whether specific absences for medical reasons are covered by the FMLA. Next, employers
should require medical certification, as allowed by the FMLA, and use that information to
verify that the employee’s absences qualify her for FMLA coverage. Finally, if the
employee’s absences are covered under the FMLA, the employer should not discipline or
terminate the employee for absenteeism that is the result of taking FMLA-protected leave.
(For further information on the FMLA and employee absenteeism, see Attendance and
Punctuality, page 701:7, note 13.)
This article is not intended as legal advice. Readers are encouraged to seek
appropriate legal or other professional advice.
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