The Law @ Work

Ouch: Employee not Entitled to FMLA Protection for Colonoscopy

Colonoscopy exams are frightening.  What’s even more frightening?  Managing employee FMLA leave.  However, determining whether an ailment qualifies as a “serious health condition,” one of the qualifying factors to leave entitlement under the Family and Medical Leave Act, is not always as complicated as you might think.

Generally, an employee who has worked the requisite 1,250 hours over the past year will qualify for FMLA leave if he or she has a serious health condition.  An ailment qualifies as a serious health condition if the employee is affected by a period of incapacity (including the inability to work) for more than three consecutive days, coupled with two or more subsequent treatments by a health care provider.  Unless extenuating circumstances exist, the treatments must take place within 30 days of the first day of incapacity.

A recent case from a Massachusetts federal court adds life to this language.  The case involved an employee who was unable to work for more than three consecutive days because she was suffering from gastrointestinal bleeding.  During this period of incapacity, she underwent a colonoscopy.  Her exam revealed no evidence of external bleeding, and she was not scheduled for any follow-up treatment.  The employee was later fired, and she sued claiming her termination was in retaliation for trying to take protected FMLA leave.

In a straightforward decision, which you can read here, the court summarily disposed of the employee’s claim.  She was not suffering from a “serious health condition,” and therefore was not entitled to FMLA protection, because she did not have two treatments following her first day of incapacity.  Her colonoscopy exam certainly counted as one treatment, but the court found no evidence to show she underwent any additional treatment related to her condition.

Some final words of caution here: Employees can establish a serious health condition in many ways; the incapacity plus two subsequent treatments method is only one avenue.  For example, incapacity plus a single subsequent treatment will suffice if a regiment of continuing treatment is prescribed (including a course of prescribed medication).  So, in the above case, if the employee had been prescribed prescription medication to treat her symptoms, she likely would have qualified for FMLA protection.  Finally, remember that your state may have its own FMLA laws, and if so the analysis may be different.  Be sure to consult with labor and employment counsel if you are unsure whether an FMLA leave request should be granted or denied.

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