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FMLA Requires Three Full Days of Incapacity for "Serious Health Condition," Appeals Court Rules

A hospital employee could not claim that several intermittent and partial day absences caused by a workplace injury amounted to a period of incapacity constituting a "serious health condition" under the Family and Medical Leave Act. Federal Department of Labor regulations require an employee be incapacitated for three full consecutive days before the employee's "serious health condition" invokes the protection of the FMLA leave. According to the U. S. Court of Appeals for the Eleventh Circuit, the FMLA's definition of "serious health condition" requires either inpatient care or "continuing treatment by a health care provider," which DOL regulation clearly states must include a period of incapacity of more than three consecutive calendar days.

At issue was the hospital's actions in terminating the employee for excessive absenteeism. Prior to an injury she sustained while at work, the employee had received a three-day suspension and a warning for attendance problems. The injury resulted in her intermittent absence from work over a 10-day period to attend doctor's appointments. She also left work early on a few occasions and did not report for work nor call in at least twice.

After being discharged, the employee sued the hospital claiming she was entitled to a period of protected leave for a serious health condition under the FMLA. At trial, the jury requested and received information from the judge that the law required "three consecutive calendar days, 72 hours or more" to qualify the period of incapacity as a "serious health condition." The jury returned a verdict for the hospital, and the employee filed this appeal.

Although the employee contended she had established that she was incapacitated for seven consecutive partial days and had met the FMLA's regulatory requirements, she did not claim that she suffered an incapacity lasting three or more full days. In rejecting her argument, the court said the plain language of the regulation defined the period of incapacity as more than three consecutive calendar days. Using the "universally understood" meaning of "calendar day" as a "whole day, not part of a day," the court reasoned that partial days do not meet the regulation's requirement. Moreover, the period of incapacity must be some increment longer than three consecutive whole days, the court noted in concluding that the bright line interpretation "will ensure that 'serious health conditions' are in fact serious, and are ones that result in an extended period of incapacity, as Congress intended." [Russell v. North Broward Hosp., 11th Cir., 10/2/03.]

Jackson Lewis attorneys in the Disability Management Practice Group are available to assist employers with their FMLA, ADA and other compliance obligations.