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 recent 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.

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.

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. (For further information on the FMLA and employee absenteeism, see Attendance and Punctuality, page 701:7, note 13.)

This article is not intended as legal advice. Readers are encouraged to seek appropriate legal or other professional advice.