A Prescription For Termination Under the FMLA

by Beverly Alfon – SmithAmundsen LLC – www.salawus.co

The U.S. Court of Appeals in the Seventh Circuit recently issued a decision that adds yet another nuance to the myriad of caselaw that we rely on to navigate the Family Medical Leave Act.  In Jones v. C&D Techs., Inc., 7th Cir. Case No. 11-3400 (6/28/2012), the court distinguished the definition of “treatment” as it relates to determining whether or not an employee has a serious health condition, from how it relates to whether or not an employee is able to perform his/her job duties.

According to the court, Jones suffered from periodic leg and back pain and anxiety.  At the time of his termination, he had a history of absences for which he accumulated penalty points under the company’s attendance policy. The policy provided that if Jones accrued even a half point more, he would be subject to termination. For the day in question, Jones received permission to attend an afternoon medical appointment – but he failed to appear for work at all.  Instead, Jones made an unscheduled visit to his doctor’s office to pick up a prescription refill order.  The doctor did not examine Jones on that day.

Jones’ morning absence from work resulted in an additional penalty point and the company fired him.  Jones sued the company alleging violation of the FMLA.  The District Court ruled in favor of the company on a motion for summary judgment, finding that Jones was not entitled to FMLA leave for that morning appointment because he did not receive medical treatment for his condition.

The appellate court agreed with the lower court’s decision, but explained that in addition to establishing a “serious health condition,” Jones was required to establish that he was unable to perform his job duties.  To establish an inability to work, the court reasoned that the employee “must be absent from work to receive medical treatment.” The fact that Jones suffered a chronic condition that required continuing treatment was not enough to raise the unscheduled visit to the doctor’s office to the level of necessary medical treatment that required the employee to be absent from work that morning.

Bottom Line:  In the Seventh Circuit (Illinois, Indiana and Wisconsin), it is not enough for an employee to establish that s/he suffers from a serious health condition. Rather, in order to be entitled to FMLA leave, the treatment for that serious health condition must prevent the employee from performing his/her job duties. However, it should be noted that the court hinted that if Jones received the prescription refill in conjunction with a physical examination from his doctor, he may have been eligible for FMLA leave. 

If you have any questions regarding the above, or other employment related questions, please contact Beverly Alfon at balfon@salawus.com, or 312.894.3323. Beverly is also a contributor to SmithAmundsen’s labor and employment blog at www.laborandemploymentlawupdate.com.