Bereavement wasn’t the only reason for treatment


Employer also loses argument regarding three days of incapacity

An employer lost its argument that an employee took FMLA leave for bereavement, which is not a qualifying reason. The employee had serious health conditions in addition to grieving the loss of his sister. Here’s the story:

Fernando had worked successfully for the company for about 16 years when his sister passed away. He went to his doctor, who placed him off work for a five-day period. A couple months later, the company issued Fernando a warning letter for failing to report to work. The company then suspended him and eventually terminated him for what it cited as job-performance issue.

Being unhappy with this development, Fernando sued, alleging that the stated reason for his termination was pretextual, and that the real reason was because he took FMLA leave, which basically entailed retaliation.

In court, the employer argued that Fernando did not have a serious health condition because he sought treatment for bereavement related to his sister’s death, and bereavement is not a serious health condition. Even if Fernando had a medical condition, the employer also argued, he was not incapacitated for more than three calendar days.

But Fernando saw a doctor for not only bereavement, but also for insomnia and high blood fats. Fernando was given two prescriptions for his conditions. The doctor also put him off work for five days.

Here’s the deal: The applicable part of the definition of a serious health condition involves a period of incapacity of more than three consecutive calendar days (Fernando was incapacitated for five days), and treatment at least twice, or treatment once followed by a regimen of continuing treatment. Such a regimen can be prescription medications (Fernando saw his doctor and was given two prescriptions).

The employer tried to counter this argument by pointing out that the earliest date that Fernando’s condition started was when he saw his doctor and that he was not scheduled to work on one of those five days his doctor had him off. Therefore, he was incapacitated for only three days.

Under the FMLA, the more than three days is a period of incapacity, not a period of absence. The employer had no legal authority for the proposition that a court should disregard days in which an employee is not scheduled to work when counting consecutive days of incapacity.

Therefore, the employer’s request for summary judgement was denied.

Friends, those “more than three days” are days of incapacity, regardless of whether the employee is scheduled to work any of those days or not.

Dela Cruz v. DeJoy, Northern District of California, No. 19-cv-01140, July 11, 2022.

Key to remember: While bereavement isn’t generally a serious health condition, don’t overlook other conditions. The “more than three days” refers to a period of incapacity, regardless of how many days an employee misses work

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.      


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