Employer prevails in FMLA leave case — Employee’s 3-day absence doesn’t qualify


Correctly applying FMLA’s “incapacity and treatment” definition was key

After leaving work early with flu-like symptoms on February 19, 2020, Julianne received a doctor’s note recommending that she “stay out of work for three days, from February 19–21, 2020.”

The note said nothing about her inability to work after that period, so it covered only three days of absence. Nonetheless, Julianne asked for leave through February 23, for a total of five days.

Employee fired

Taking the note at its face value, the employer fired Julianne on February 21. In response, Julianne sued claiming that the employer violated her Family and Medical Leave Act (FMLA) rights when it fired her.

Under the federal FMLA, however, the part of the definition of a serious health condition Julianne’s condition fell, requires a period of incapacity of more than three, consecutive, full calendar days.

Employee’s argument

In court, Julianne testified that, on February 21, she “wasn’t feeling too well,” but was nonetheless still “able to work.” This further undermined her argument that she was entitled to FMLA leave.

She went on to argue that she returned to the emergency room on March 18, 2020, with COVID-19-like symptoms as evidence that she was sick for a month straight. She admitted, however, that her symptoms from February 2020 resolved before she got sick again, demonstrating that she was not continuously incapacitated for that entire period.

The court ruled in favor of the employer.

Arizmendi v. Rich Prods. Corp., Second Circuit Court of Appeals, No. 22-1971, June 29, 2023

Period of incapacity

Not all conditions require a period of incapacity of more than three days to be protected by the FMLA. Those include:

  • Pregnancy,
  • Chronic conditions,
  • Long-term/permanent conditions, or
  • Conditions that require multiple treatments.

For these conditions, any period of incapacity is FMLA leave.

Only the “incapacity and treatment” part of the FMLA serious health condition definition requires a period of incapacity of more than three days.

Key to Remember: Employers benefit from knowing the FMLA’s definition of a serious health condition and how to apply it. In this case, the employee’s condition did not meet the definition.

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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