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8th Circuit Says No FMLA Claim Where Employee Was Not Under Continuing Treatment by Healthcare Provider

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In the recent case of Johnson v. Wheeling Machine Products, the United States District Court for the Eighth Circuit Court of Appeals (which includes Missouri) upheld summary judgment for an employer in a case filed under the Family and Medical Leave Act (FMLA). The Court issue was whether a plant worker who took leave for several days could prove a violation of the FMLA when he had not been under continuing treatment by a healthcare provider, either in the form of a follow-up visit within 30+ days of his initial doctor visit or prescription medication under supervision of a healthcare provider. The Court held that the employee could not state a claim under the FMLA, and it upheld summary judgment in the employer’s favor.

While on duty at U.S. Steel, Kendrick Johnson told his supervisor that he was not feeling well and was leaving work to see a doctor. At the clinic, he saw a physician’s assistant who diagnosed him with high blood pressure, prescribed blood pressure medication, and told him follow up with his regular physician. Johnson was not told when to schedule a follow-up appointment and was sent home with a signed note, which stated that he could return to work a few days later. After seeing the physician’s assistant, he stopped by the plant to give his note to a supervisor. Johnson’s supervisor was unconvinced by the written note and rejected it twice because Johnson had written in his own name on it, and because the note did not state the reasons for being off work. Johnson attempted to obtain a third note, but the clinic would not give a more detailed explanation for his absence. Shortly after, Johnson was suspended and terminated for “altering, falsifying or forging the work excuse.” The day he was terminated, the clinic faxed the supervisor new copies of the work notes and explained their validity, along with a signed letter by the physician who examined Johnson explaining that the notes were not falsified. Notwithstanding this new documentation, Johnson was not reinstated to his position.

Sometime after his termination, he filed a lawsuit alleging violations of the FMLA. Johnson alleged that U.S. Steel unlawfully interfered with his FMLA rights, failed to reinstate him after a period of protected leave, retaliated against him for taking protected FMLA leave and failed to provide him with notice of his rights and obligations under the FMLA.

The Eighth Circuit has recognized three categories of FMLA claims:

  • Entitlement claims, in which an employee alleges a denial of a benefit to which he was entitled under the statute;
  • Discrimination claims, in which an employee alleges that the employer discriminated against him in the terms and conditions of employment because the employee exercised rights to which he was entitled under the FMLA; and
  • Retaliation claims, in which an employee alleges that the employer took adverse action against him for opposing a practice made unlawful under the FMLA.

Although Johnson labeled his claims as “retaliation” and “interference” claims, the Eighth Circuit analyzed them as FMLA entitlement and discrimination claims. His entitlement claim was based on his employer’s failure to reinstate him. To succeed on either claim, an employee must show he was entitled to leave under the FMLA. According to the Court, Johnson failed to meet his burden.

The FMLA entitles an employee to twelve workweeks of leave during a twelve-month period if the employee has a “serious health condition that makes the employee unable to perform the functions of the position of such employee.” A serious health condition is an “illness, injury, impairment or physical or mental condition” that involves either inpatient care or continuing treatment by a health care provider. To be entitled to FMLA leave due to a health condition, an employee must present evidence of a qualifying serious health condition. The Court stated that if a health condition is serious, either supervision or a follow-up appointment within 30+ days of the first visit is required.

The employee argued that he was entitled to FMLA leave due to the continuing treatment of his high blood pressure. He did not offer evidence that a follow-up visit with his own physician occurred within 30+ days of his visit to the physician’s assistant, or that the physician’s assistant had instructed him to follow up within 30 days. The assertions about a follow-up appointment must be clear and specific. Thus, he did not meet the legal requirement to have two visits within 30 days.

His second argument was that he received prescription medication from the physician’s assistant and was instructed to follow up with his regular doctor. However, the Court concluded that a patient’s regimen of continuing treatment must involve either supervision, like a phone call with a health care provider to communicate about the patient’s condition and progress, or a follow-up appointment soon after the first visit. The employee did not offer evidence that he or the physician’s assistant followed up regarding his treatment or that the physician’s assistant advised him to remain in contact about any updates on his condition. Thus, the Court found that the employee failed to raise a material fact issue as to whether he had a serious health condition within the meaning of the FMLA.

Finally, the employee argued that his employer’s failure to provide FMLA notice prejudiced him, although the Court noted that this did not change the result. The employee’s failure to demonstrate he had a serious health condition mooted his argument and the case was dismissed in favor of the employer.

The lesson from this case for employees is that if you are absent from work for a reason that may be an FMLA-qualifying event, you should make sure that you are undergoing a continuing regiment of treatment from a healthcare provider, either by receiving prescription medication or by scheduling a follow-up visit with your doctor within 30+ days of your initial visit. Absent those facts being present, your absence from work is likely not protected by the FMLA.

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