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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 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.
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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.
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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.
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Personnel
Policy Service, Inc.
