As employers are well aware, the Family and Medical Leave Act (FMLA) allows eligible employees to take leave for qualifying serious health conditions. In a recent decision, the U.S. 2nd Circuit Court of Appeals—which covers Connecticut, New York, and Vermont—highlighted the need for employers to be more inquisitive—and perhaps more expansive—when determining whether a condition is a “serious health condition.”
“Nia” was employed by the New York Methodist Hospital as a medical records file clerk, a job that required standing and walking for extended periods. Sometime during her employment, she noticed a benign soft tissue mass growing on her left foot that became increasingly painful and limited her ability to perform her job. She declined conservative care and instead elected to have her podiatrist surgically remove the mass a couple of weeks later.
Nia requested FMLA leave for her surgery and postoperative recovery. Despite her podiatrist’s certification of a “serious health condition,” the hospital denied her request because she failed to comply with its FMLA policy requiring 30 days’ advance notice for FMLA leave. Nia went forward with surgery and missed work, resulting in the termination of her employment because of an alleged unauthorized absence.
Nia sued the hospital for denying her FMLA leave. The hospital argued that she didn’t qualify for FMLA leave. Among other things, the hospital claimed she hadn’t provided adequate notice and didn’t have a “serious health condition” because it didn’t require multiple treatments and it wouldn’t have incapacitated her from working if it had been left untreated. The district court dismissed the case, agreeing that Nia didn’t have a serious health condition, but it didn’t address whether she had provided adequate notice. Nia appealed to the 2nd Circuit.
2nd Circuit’s Opinion
On appeal, the 2nd Circuit considered first whether a condition that required only a single surgical procedure could still be a serious health condition, and, second, whether working without absence up until the date of surgery disqualified the employee’s condition from being considered serious. The court found in Nia’s favor on both questions.
The 2nd Circuit held that although Nia underwent surgery only once, she still required multiple postoperative follow-up appointments, thereby making it a condition that necessitated “multiple treatments.” Moreover, the appeals court held that her postoperative treatments were medically predictable from the outset. It noted that if the postoperative treatment arose because of unexpected complications caused by the surgery and therefore were unforeseeable, then a different conclusion may have been reached. Because the hospital never sought a second opinion, Nia’s medical certification that she had a serious health condition was entitled to deference in the appeal.
Even though Nia worked up to the date of the surgery and would have continued to work in pain had she not had surgery, her condition may have still resulted in a period of incapacity of more than 3 days in the absence of treatment. The court explained that there was still a possibility that she couldn’t have continued to work without treatment had the pain continued to worsen. It ruled that her testimony stating that the growth on her foot was worsening, painful, and affected her ability to walk was sufficient to set forth the possibility of incapacity. Pollard v. N.Y. Methodist Hosp., No. 15-3231, 2017 WL 2818134 (2nd Cir., June 30, 2017).
This 2nd Circuit decision makes it clear that employers shouldn’t take a hypertechnical view of “serious health conditions.” This is true even if your employee seems to be able to perform the essential functions of his job before taking leave.
If there is a disagreement as to whether an employee requesting FMLA leave has a serious health condition, consider requesting that he submit to a second medical examination under the FMLA. Given the 2nd Circuit’s decision, you should be aware that postoperative care will count as “multiple treatments” that will qualify as a serious health condition.
Additionally, New York’s new paid family leave law echoes the FMLA’s definition of “serious health condition,” which subjects you to additional liability. Always ensure that you have up-to-date FMLA policies and procedures in place so you will be prepared if you experience a situation similar to this case.
Angelo D. Catalano, an editor of New York Employment Law Letter, can be reached at firstname.lastname@example.org or 607-723-9511. Grace E. Hwang is a summer associate with Coughlin & Gerhart, LLP, and is attending Syracuse University College of Law.