The Family and Medical Leave Act (FMLA) provides unpaid leave time to eligible employees under specific circumstances, including the serious health condition of the employee. It is a violation of the FMLA for an employer to interfere with an employee’s use or attempted use of FMLA leave time. The 7th U.S. Circuit Court of Appeals has held that an employee who did not receive actual medical treatment during a specific absence could not support an FMLA interference claim for his termination. Jones v. C&D Technologies, Inc., 7th Cir, No. 11-3400, June 28, 2012.
Robert Jones began working for C&D Technologies in 2000 as a machine operator in the company’s Attica, Indiana plant. During the course of his employment, Jones experienced periodic leg and back pain, as well as bouts of anxiety, for which he requested intermittent FMLA leave.
C&D implemented an attendance policy that assigned “points” to absences. For instance, an employee who missed more than four hours of a scheduled shift was assigned one point, while absences lasting less then four hours were assessed one-half a point. Employees also were required to report an absence no later than 30 minutes prior to a shift-start, or an additional one-half point would be added. Points were not assessed for pre-approved FMLA absences. Any employee accumulating one point within a four month period was given a written warning; a second written warning was given to anyone accruing two points in that period; and a third point within that period resulted in termination.
In September 2009, C&D was aware that Jones required periodic treatment for his leg pain and for anxiety. On September 30, Jones spoke to C&D’s FMLA coordinator to request FMLA leave for a 1:00 p.m. appointment at a clinic in Crawfordville, Indiana set for the following day. The coordinator reminded Jones to inform his supervisor of the absence. At that point, Jones already had accumulated 2½ absence points within the prior four months.
On October 1, Jones missed his entire shift. At approximately 10 a.m. on that date, he made an unscheduled visit to his local doctor’s office to confirm that his file had been transferred to the Crawfordsville clinic, and to pick up a prescription refill note. He then drove to Crawfordsville for his 1:00 appointment at the clinic. Whether or not Jones reported his absence to his supervisor is a matter of dispute.
Because of Jones’ October 1 absence, C&D suspended him, pending an investigation, and determined that Jones could have been assessed 1½ points: one point for a full day of absence, and ½ point for failing to report the absence. However, because Jones had a pre-arranged medical appointment on the afternoon of October 1, and because Jones reported leaving a voicemail for his supervisor, he was assessed only ½ point for his absence during the morning of October 1. That one-half point took his total points to three, leading to his discharge.
Jones filed a lawsuit, arguing that his absence on the morning of October 1 was for “treatment” for his serious health condition, because it involved obtaining a prescription for medication. The lower court determined that Jones’ morning errands on October 1 did not constitute treatment as a matter of law, and awarded summary judgment to C&D. Jones appealed that decision.
The Seventh Circuit upheld the dismissal. It pointed out that the FMLA entitles an employee to leave if the employee suffers from a serious health condition that “makes the employee unable to perform the functions of [his] position.” The DOL regulations define an employee unable to perform his duties as one “who must be absent from work to receive medical treatment for a serious health condition.” The word “must” implies that the employee’s absence is necessary for the treatment. Alternatively, an absence for unnecessary treatment, or for no treatment at all, means that the employee is not “unable to perform” the functions of his position. Therefore, Jones’ situation revolved around the definition of “treatment.”
According to the Seventh Circuit, while the DOL’s definition of “treatment” includes the phrase “a course of prescription medication,” the FMLA requires something more than that to become entitled to leave – the actual inability to perform job functions. Jones’ absence was not based upon his inability to do his job. Instead, on the morning of October 1, he made an unscheduled visit to his doctor to check on medical records and to ask for a prescription refill. His doctor did not examine him, or treat him, and spoke only briefly to him. There was no “treatment” provided and, therefore, no FMLA-qualifying leave.
Employers should recognize that this case cannot be interpreted to exclude every medical visit from FMLA leave when one reason for the visit was obtaining prescription medication. Instead, the entire purpose of the visit to the physician must be assessed, and viewed in the light of the employee’s FMLA-qualifying medical condition. If, in fact, “treatment” is being provided, the absence is likely to be deemed FMLA leave.