Serious Health Condition to qualify for FMLA protected leave

Under the Family Medical Leave Act (FMLA), an eligible employee is entitled to twelve weeks of unpaid leave during any twelve-month period for any of several reasons, including "a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D); see id. § 2611(2)(A) (defining eligible employee). The employee is entitled to be restored to her job (or to an equivalent position) upon her return to work after taking FMLA leave. See id. § 2614(a). Further, the employee's FMLA absences cannot count against her under her employer's "no fault" attendance policy. See 29 C.F.R. § 825.220(c) (1999).

"For purposes of FMLA, 'serious health condition' means an illness, injury, impairment, or physical or mental condition that involves: . . . . [a]ny period of incapacity requiring absence from work . . . of more than three calendar days, that also involves continuing treatment by . . . a health care provider."  Thorson v Gemini Inc., 205 F.3d 370 (8th Cir. 2000), citing 29 C.F.R. § 825.114(a)(2); see id. § 825.800.

On its face, then, the interim final rule sets forth three objective requirements that must be met before an employee can be deemed to have had a "serious health condition": 

(1) she must have had a "period of incapacity requiring absence from work," 

(2) that period must have exceeded three calendar days, and

(3) she must have had "continuing treatment by . . . a health care provider" within that period. 

Thorson v Gemini Inc., 205 F.3d 370 (8th Cir. 2000), citing 29 C.F.R. § 825.114(a)(2); see id. § 825.800.

Serious Health Condition

"Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves:
any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or
a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or
any period of incapacity due to pregnancy, or for prenatal care; or
any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or
a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer's, stroke, terminal diseases, etc.); or,
any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).


A serious health condition that makes the employee “unable to perform the functions” of his or her job.

A serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. Some common serious health conditions that qualify for FMLA leave include conditions requiring an overnight stay in a hospital or other medical care facility; conditions that incapacitate for more than three consecutive days and require ongoing medical treatment (either multiple appointments with a health care provider, or a single appointment and follow-up care such as prescription medication); chronic conditions that cause occasional periods when the employee is incapacitated and that require treatment by a health care provider at least twice a year; and pregnancy (including prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest.

An employee is unable to perform the functions of the position where the health care provider finds that the employee:

1) is unable to work at all; or
2) is unable to perform any one of the essential functions of the employee's position.

An employee who must be absent from work to receive medical treatment for a serious health condition is considered to be unable to perform the essential functions of the position during the absence for treatment.

From DOL Fact Sheet.

If you have been denied FMLA benefits, or were not even told that you were eligible for protected time off, you should contact Madathil Law Office for a free consultation. 

Madathil Law Office, LLC

Nebraska Employment Attorney

1625 Farnam Street #830

Omaha, NE 68102

angela@madathil-law.com

http://www.madathil-law.com/

T: 402.577.0686

F: 402.932.9551

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The Eighth Circuit upholds FMLA award

On March 27, 2013, the Eighth Circuit upheld an FMLA award but reversed pat of the award to the employee for front-pay as overly speculative. 

In Dollar v. Smithway Motor Xpress, the district court found in favor of the plaintiff and awarded back pay, front pay, and liquidated damages. The Eighth Circuit court rejected defendant's challenges to the district court's finding of liability. Even if defendants did not waive the affirmative defense of failure to mitigate damages, the court agreed with the district court's alternative holding that plaintiff's efforts to secure other employment were reasonable. The Eighth Circuit vacated the award of front pay as overly speculative but affirmed the district court's judgment in all other respects.  

In this case Dollar suffered from depression and was even treated at the emergency room.  She had doctor's notes that indicated she was being treated for depression and could not return to work.  Her employer did not tell her about her eligibility for FMLA protected leave or rights to FMLA protected time off.   Her employer also did not keep her job open for her while she was being treated.  She was fired for missing too many days of work. 

In a detailed written opinion, the district court rejected Dollar's retaliation claim. The court held, however, that Dollar was a qualified employee entitled to FMLA leave. The court found Dollar's repeated and conspicuous presentation of medical excuses and her detailed interactions with Kellet and Nelson were an

adequate assertion of FMLA rights. The court concluded that Smithway interfered with Dollar's exercise of FMLA rights by terminating her with knowledge of her serious medical condition.  

Front Pay

The court considered evidence of Dollar's pre- and post-Smithway earnings and awarded backpay to the date of the judgment in the amount of $80,793. The court awarded statutory liquidated damages in the same amount. The court also awarded front pay for a period of ten years in the amount of $134,526. The court rejected reinstatement as infeasible and did not include a multiple of front pay in the statutory liquidated damages award.

In determining front pay, the court noted that it was Dollar's burden to prove her entitlement to front pay to a reasonable degree of certainty and Smithway's burden to prove any failure to mitigate damages. The court found, however, that Smithway had not pleaded the affirmative defense of failure to mitigate damages and therefore had waived the issue. The court found in the alternative that even if Smithway had not waived the affirmative defense, Dollar, in fact, acted reasonably in seeking replacement employment and did not fail to mitigate her damages.

The district court determined that, as of the time of its judgment—more than three and one half years following Dollar's termination—Dollar was entitled to back pay representing compensation through the date of judgment. The court also determined she was entitled to front pay for a future period of ten years. Given

changes in the Iowa operations of the defendants and/or their owner or successor, given the substantial reduction in force that occurred in Iowa between Dollar's termination and trial, and given the important fact that Dollar was untested and inexperienced in the position of driver recruiter, any award of front pay in this case involved an impermissible degree of speculation. 

Front pay is an equitable remedy courts may award when it is determined reinstatement is no longer feasible, and awards of front pay are substitutes for reinstatement. See Sellers v. Mineta, 358 F.3d 1058, 1063 (8th Cir. 2004) ("Front pay is a disfavored remedy that may be awarded in lieu of reinstatement, but not in addition to it, where the circumstances make reinstatement impractical."). Awards of front pay are always at least partially speculative as they necessarily rest upon predictions and assumptions about a plaintiff's longevity, the likely duration of any future employment, the continued viability of the employer, ongoing efforts at mitigation, and countless other factors. See Mathieu v. Gopher News Co., 273 F.3d 769, 782 (8th Cir. 2001) ("An award of front pay also is inherently speculative in length of time and when considering possible mitigation by reason of other employment. It is based on probabilities rather than actualities."). The Eighth Circuit reviews an award of front pay for abuse of discretion and do not mean to suggest that some unattainable degree of metaphysical certainty is required in order to justify an award of front pay. Christensen, 481 F.3d at 1098. Some degree of speculation is inescapable, but the Eighth Circuit has recognized limits to the amount of speculation that such an award may embody. See, e.g., United Paperworkers Int'l Union, AFL-CIO, Local 274 v. Champion Int'l Corp., 81 F.3d 798, 805 (8th Cir. 1996).

Finally, and importantly, the Eighth Circuit noted that because front pay is an equitable remedy, it is appropriate to consider all of the circumstances of a case to assess whether an award is appropriate. See id. at 322 (emphasizing that "front pay is an equitable remedy[,]" "the court must avoid granting the plaintiff a windfall[,]" and "the trial court must consider many complicated factors in deciding whether to award front pay." ). Here, the transfer to the position of driver recruiter in and of itself was an attempt to address attendance concerns, and Dollar admitted she did not view the transfer as an adverse or negative action. The transfer was not necessarily required by the FMLA. As a result, Dollar's case presents a strange situation. The employer willfully interfered with the employee's FMLA rights, but the employer's own 3 arguably laudable earlier attempts to accommodate the employee were the very acts that made possible the underlying recovery of back pay and liquidated damages. The defendants simply were not required to reinstate Dollar to the position of driver manager, a position she admits she would not have been able to perform. Spangler, 278 F.3d at 851 ("If [an employee] had a serious health condition which made her unable to perform her job and if she made a valid request for FMLA leave, upon the expiration of her leave, the [employer] would be under no obligation to reinstate her if she remained unable to perform the essential functions of her position."). As such, the finding that defendants actually transferred Dollar to the position of driver recruiter prior to her termination—a position the court found she could have performed upon return from leave—was vital to the attachment of any liability in this case. Given the equitable nature of the front-pay remedy and the peculiar facts of the present case, the Eighth Circuit believed it was particularly important to guard against an overly speculative award in this context. Accordingly, the Eighth Circuit vacated the award of front pay but affirm the carefully articulated judgment of the district court in all other respects.

Retaliation, Interference, and Accommodation

"Under the FMLA, employers are prohibited from interfering with, restraining, or denying an employee's exercise or attempted exercise of any right contained in the FMLA." Quinn v. St. Louis Cnty., 653 F.3d 745, 753 (8th Cir. 2011). Interference claims cover "'not only refusing to authorize FMLA leave, but discouraging an employee from using such leave,' as well as 'manipulation by a covered employer to avoid responsibilities under [the] FMLA.'" Id. (alteration in original) (quoting 29 C.F.R. § 825.220(b)). Termination in response to a qualifying employee's assertion of rights may qualify as interference. See Phillips v. Mathews, 547 F.3d 905, 914 (8th Cir. 2008) ("The termination of an employee for exercising rights under the FMLA could be viewed as actionable under § 2615(a)(1) as a denial of the employee's right under 29 U.S.C. § 2614(a) to be restored to an equivalent position upon return from FMLA leave."). 

Here, Dollar admits that she could not have performed the functions of the driver-manager position even after she was medically approved to return to work. Dollar asserts, however, that she could perform the functions of driver recruiter.  Smithway does not argue Dollar would have been physically or mentally unable to perform the job of driver recruiter after July 2007. Instead, Smithway argues Dollar never accepted or held the position of driver recruiter, and because Dollar could not have performed the functions of her old position, driver manager, Smithway in no way interfered with Dollar's FMLA rights. By extension, Smithway argues any liability based upon a failure to permit Dollar to work as a driver recruiter after July 2007 impermissibly reads a duty of reasonable accommodation into the FMLA.  Smithway does not present any other meaningful challenges to the underlying finding of FMLA liability.

The Eighth Circuit noted that Smithway is correct that, unlike the Americans with Disabilities Act, the FMLA does not impose a duty of reasonable accommodation. Rather, the FMLA requires a qualifying employer to grant a qualifying employee twelve weeks of leave in a twelve month period if the employee suffers "a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). In addition, the FMLA requires the employer to reinstate the employee to her original position or to an "equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment," 29 U.S.C. § 2614(a)(1)(B), following any such period of leave. Spangler v. Fed. Home Loan Bank of Des Moines, 278 F.3d 847, 851 (8th Cir. 2002). While not a duty to provide reasonable accommodation, the FMLA duty of restoration clearly and expressly broadens the employer's obligation beyond a narrow focus solely on the actual position held by the employee before onset of the serious health condition and extends to equivalent positions. See id. (comparing and contrasting the ADA and the FMLA and noting that the FMLA does not require employers to restore employment following leave if "'the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition'" (quoting Reynolds v. Phillips & Temro Indus., Inc., 195 F.3d 411, 414 (8th Cir. 1999))).

If you have been denied FMLA benefits, or were not even told that you were eligible for protected time off, you should contact Madathil Law Office for a free consultation. 

Madathil Law Office, LLC

Nebraska Employment Attorney

1625 Farnam Street #830

Omaha, NE 68102

angela@madathil-law.com

http://www.madathil-law.com/

T: 402.577.0686

F: 402.932.9551

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New FMLA posters

The Department of Labor (DOL) recently released revised and updated several of its forms to help employers administer leave under the Family and Medical Leave Act (FMLA).  The forms include a new form for certifying military caregiver leave for a veteran (as opposed to a current servicemember).  In addition, the DOL has issued a new FMLA poster, which employers are required to post in their workplaces by March 8, 2013.

Here are links to the most up-to-date versions of the DOL’s FMLA poster and forms:

FMLA Poster

•  New FMLA Poster

Serious Health Condition Certification Forms

•  FMLA Certification Form for an Employee’s Serious Health Condition

•  FMLA Certification Form for an Employee’s Family Member’s Serious Health Condition

Eligibility and Designation Notices

•  Form for Notifying Employee of FMLA Eligibility and Rights & Responsibilities

•  Form for Designating Leave As FMLA-Qualifying or Non-Qualifying

Military Leave Certification Forms

•  FMLA Certification Form for “Qualifying Exigency” Military Leave

•  FMLA Certification Form for Military Caregiver Leave for a Current Servicemember

•  FMLA Certification Form for Military Caregiver Leave for a Veteran

Employers should post the new FMLA poster by March 8, 2013, and make sure that they are using the most up-to-date forms available for administering FMLA leave.

If you are a small business or any employer with questions regarding the new FMLA posters, contact Madathil Law Office for a free consultation.

Madathil Law Office, LLC

Nebraska Employment Attorney

1625 Farnam Street #830

Omaha, NE 68102

angela@madathil-law.com

http://www.madathil-law.com/

T: 402.577.0686

F: 402.932.9551

FMLA Requires Calls to Employer

Employees who have worked for more than a year at a company which has more than fifty employees is entitled to protected medical leave under the Family Medical Leave Act (FMLA) for absences due to a serious medical illness or other serious life event.  While employers are required to let employees know about their right to use the FMLA leave, employees must follow company procedures for calling in to report absences to use FMLA leave.  In general, the employee should given notice directly the employee's supervisor.

In the case Bosley v. Cargill Meat Solutions Corp.,Tanya Bosley, an employee of Cargill Meat Solutions Corporation ("Cargill"), missed work because of depression and other health issues. Bosley missed work the entire month of February 2008. Bosley failed to use Cargill's call-in procedure for absences. Bosley also did not notify Cargill that she would qualify for leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 etseq. Cargill terminated Bosley's employment, and Bosley sued Cargill, asserting FMLA entitlement and retaliation claims. The district court granted Cargill's motion for summary judgment on both claims. Bosley appealed, and the Eighth Circuit affirmed.

Cargill's attendance  policy included  a  call-in  procedure  for  employees  to inform Cargill of any necessary and unavoidable absences through an automated phone system. Under Cargill's policy, failure to comply with the call-in procedure on three consecutive work days would result in a voluntary termination of employment.

Bosley was familiar with this policy. She had the call-in number programmed into her phone,  and she  successfully  utilized the  procedure  on over  100  occasions.  Nevertheless, on February 1, Bosley did not call Cargill. In fact, Bosley missed work the entire month of February 2008, and she never used the call-in procedure.

Bosley was conscious, able to get out of bed, able to visit two healthcare providers, and able to communicate coherently.  She admitted in deposition testimony that her depression improved and "became not incapacitating around February 15."  According to her FMLA paperwork, her condition was no longer incapacitating by February 25.

The district court granted summary judgment to Cargill on both claims, finding that Bosley did not meet her obligation to provide notice to Cargill of her need for protected leave under the FMLA. Bosley appealed, asking this court to reverse the district court's grant of summary judgment and to remand

Bosley argued that the district court erred in finding that she failed to satisfy her notice obligation under the FMLA. The Eighth Circuit "review[ed] a grant of summary judgment de novo." Rynders v. Williams, 650 F.3d 1188, 1194 (8th Cir. 2011).  "Summary judgment  is proper  if,  after  viewing  the  evidence  and  drawing  all  reasonable inferences in the light most favorable to the nonmovant, no genuine issues of material fact exist and the movant is entitled to judgment as a matter of law." Id. (quotation and citation omitted). The jury is responsible for weighing the evidence and making credibility determinations,  not  the  court. Id.  "'[T]he  court should deny summary judgment if there is sufficient evidence for a jury to return a verdict for the nonmoving party.'" Id. (quoting Young-Losee v. Graphic Packaging Int'l, Inc., 631 F.3d 909, 911 (8th Cir. 2011)).

In Scobey v. Nucor Steel-Arkansas, 580 F.3d 781 (8th Cir. 2009), the court reiterated the rigorous notice standard for employees seeking to use FMLA  leave  for  absences.  Employees  have an affirmative  duty  to indicate  both the  need and  the  reason for  the  leave, and must let employers know when they anticipate returning to their position.  Brown v. Kansas City Freightliner Sales, Inc., 617 F.3d 995, 997 (8th Cir. 2010).  "Before an employee can claim FMLA protection,  .  .  .  the  employee must  put  the statute  in play—she must notify her employer that she may need FMLA leave." Murphy v. FedEx Nat'l LTL, Inc., 618 F.3d 893, 900 (8th Cir. 2010) (citing Scobey, 580 F.3d at 787). "A claim under the FMLA cannot succeed unless the  plaintiff can show  that he gave his  employer adequate and timely notice of his need for leave . . . ." Woods v. DaimlerChrysler Corp., 409 F.3d 984, 991 (8th Cir. 2005).

Notice from a Spokesperson

The regulatory language in place in February 2008 provided that "[n]otice may be given by the employee's spokesperson (e.g., spouse, adult family member or other responsible party) if the employee is unable to do so personally." 29 C.F.R. § 825.303 (2008). Bosley argues that Pilcher gave notice to Cargill of Bosley's absence from work due to depression and, hence, of her need for FMLA leave. Bosley points to Pilcher's deposition testimony regarding  the  conversation  that Pilcher  had  with Crowell on February 1.

Pilcher's equivocal and  self-contradictory recollections  of what  she  told Crowell failed to show that Bosley gave notice through Pilcher. The only reasonable inference that could be drawn in Bosley's favor is that Pilcher simply did not recall whether she told Crowell that Bosley was depressed. "An assertion that a party does not recall an event does not itself create a question of material fact about whether the event did, in fact, occur." To v. U.S. Bancorp, 651 F.3d 888, 892 n.2 (8th Cir. 2011). The court held that Bosley has provided insufficient evidence for a reasonable jury to find that she gave Cargill adequate notice under the FMLA.

"Extraordinary Circumstances" Excuse

Bosley argued that Department  of Labor regulations excuse the  notice requirement where "extraordinary circumstances" make the giving of such notice unrealistic. The regulation provides, in pertinent part that when the approximate timing of the need for leave is not foreseeable, an employee should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the

particular case. It is expected that an employee will give notice to the employer within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances where such

notice is not feasible. 29 C.F.R. § 825.303(a) (2008). Cargill responded that the regulation does not excuse

the notice requirement altogether in extraordinary circumstances; rather, it merely modifies the general rule that "as soon as practicable" means "one or two working days." Id. Cargill's interpretation is correct. The language of the regulation does not completely  excuse the  notice requirement  but  only  extends  the  allowable notice period beyond two working days.

The Eighth Circuit considered whether Bosley gave notice "as soon as practicable under the facts and circumstances of[her] particular case."  Id.  Bosley did not make contact with Cargill until March 3, 2008,—32 days after she last utilized the call-in procedure. Bosley admitted in her deposition that her depression "became not incapacitating around February 15." Or, according to her FMLA paperwork, her condition was no longer incapacitating by February 25.  Because 2008 was a leap year, March 3 was one full week beyond February 25. Thus, Bosley did not contact Cargill for at least five full working days after her depression "became not incapacitating." Bosley states no facts constituting extraordinary circumstances to justify her delay in notifying Cargill. As a matter of law, Bosley's notice requirement was not excused on the basis of "extraordinary circumstances."

"Constructive Notice" Excuse

Bosley argues that her behavior could have placed Cargill on constructive notice  of her  need for FMLA leave. Bosley relies  principally on Byrne  v. Avon Products, Inc., 328 F.3d 379 (7th Cir. 2003), in arguing that the Department of Labor regulations in effect at the time recognized constructive notice of the need for leave.  But as Cargill points out, we expressly rejected Byrne in Scobey. There, we voiced our "serious doubts about the continuing validity of constructive notice in the FMLA context." 580 F.3d at 788. 

The Seventh Circuit in Byrne  v.  Avon  Prods. relied  on a  previous version  of 29 C.F.R. § 825.303(a), which stated that, when leave is unforeseeable, "[i]t is expected that an employee will give notice to the

employer within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances where such notice is not feasible." 328 F.3d at 382 (adding emphasis). Based on this "extraordinary circumstances" exception, the court in Byrne concluded that an employee's aberrant or unusual behavior could, in some cases, be "itself notice  that something had  gone medically wrong,  or perhaps [excuse] notice . . . ." Id. at 381. However, the DOL has subsequently deleted the sentence relied on by the court in Byrne and replaced it with language that currently reads: "[i]t generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time  prescribed  by  the  employer's  usual  and  customary  notice requirements applicable to such leave." 29 C.F.R. § 825.303(a). Now that the DOL has  nullified the regulatory  basis for the  doctrine, we decline  to create a constructive-notice  exception to an employee's "affirmative duty," see Woods, 409 F.3d at 990–91, to notify his or her employer of the need for leave that might be FMLA-qualifying. Id. at 788 (alterations in original) (footnotes omitted).

The court found that there were no genuine issues of material fact as to her failure to satisfy her notice obligation under the FMLA. The Eighth Circuit held that the district court did not err in dismissing Bosley's entitlement claim.  B. Bosley's FMLA Retaliation Claim Bosley lacked any "direct evidence of retaliation." Phillips v. Mathews, 547 F.3d 905, 912 (8th Cir. 2008). As a result, "we analyze her FMLA retaliation claim under the McDonnell Douglas burden-shifting framework." Id.

[Bosley] was required to first establish  a prima facie  case of retaliation, which required her to show that she exercised rights afforded by the [FMLA], that she suffered an adverse employment action, and that there was a causal  connection  between  her  exercise of rights  and  the  adverse employment action.  Id. 

An employee's meeting his or her notice obligation to an employer of a need for FMLA leave is essential to a FMLA retaliation claim.  See,  e.g., Wierman  v. Casey's Gen. Stores, 638 F.3d 984, 1000 (8th Cir. 2011) ("In order to benefit from the protections of the statute,  an employee must  provide  her  employer with  enough information to show that she may need FMLA leave." (quotation, alterations, and citation omitted)). Here, Bosley notified Cargill that she would seek FMLA leave only after Cargill had terminated her employment. Because Bosley did not meet her FMLA notice obligation to Cargill while employed, her termination could not have been retaliation. There is no genuine issue of material fact regarding Bosley's failure to meet her notice obligation, so Bosley fails to make a prima facie case for FMLA retaliation. The district court did not err in dismissing her claim.

If you have questions about your qualification for or use of FMLA leave, contact Madathil Law Office.  The firm offers free consultations.

If you are a small business owner and you have questions about how to comply with the FMLA, contact Madathil Law Office. 

Madathil Law Office, LLC
Omaha Employment and Business Law

1625 Farnam Street #830

Omaha, NE 68102

angela@madathil-law.com

http://www.madathil-law.com/

T: 402.577.0686

F: 402.932.9551

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Eighth Circuit Clarifies FMLA Employees Rights Against Interference

The Eighth Circuit recently released an opinion in the case of Clinkscale vs. St. Therese of New Hope, which clarifies an employees rights to use FMLA leave without interference.  On November 13, 2012, the Eighth Circuit released the decision which ruled that the District Court improperly held that St. Therese did not have notice of Clinkscale's need for medical leave  prior to her termination and, alternatively, that Clinkscale had been terminated for patient abandonment and not for asserting her FMLA rights.

The Clinkscale case involves compellng facts that led the Eighth Circuit to find that St. Therese granted Clinkscale  leave to attend to her mental  health and  decided retroactively that Clinkscale  had  quit before  she  could  submit paperwork the following morning to suggest she had left to seek treatment for  a serious health condition.  Thus, St. Therese bore the risk that the Plaintiff's crying, shaking and generally distraught countenance would  require  additional leave  for  what  was diagnosed  mere  hours  later  as a qualifying health condition.   In Clinkscale the employer's Human Resources Director had specifically directed the Plaintiff to leave work for the day because the Plaintiff had a panic attack in the Director's office.  Thus, the employer's arguments that the Plaintiff had walked off the job and abandoned patients rang hollow given that the Plaintiff's submitted her FMLA form from her doctor immediately after her doctor's appointment the next day.

This is a significant case reflecting that in the Eighth Circuit an employee can have symptoms that later rise to the level of a serious medical condition justify protected time off under the FMLA.

If you live in Omaha, Lincoln, Lancaster County, Douglas County, Otoe, or Cass Counties and you need an employment law attorney, consider contacting Angela Y. Madathil and the Madathil Law Firm. 

Contact us at angela@madathil-law.com or by telephone at 402.577.0686.  For more information feel free to look at our website www.madathil-law.com.