Just How “Serious” is Bronchitis? Serious Enough to be Legally Protected?

As we peer toward the light at the end of the cold-and-flu-season tunnel, a little refresher on an employer’s obligations under the Family and Medical Leave Act (FMLA) is in order. A recent case out of Florida highlights some of the pitfalls in this area of workplace law, as the company’s denial of FMLA rights to an employee led not just to a claim but a risk of costly trial as well. The case involves claims by a former employee of the City of Naples, Florida, who was fired for various policy violations shortly after he returned to work from time off due to bronchitis. He sued, contending that the City wrongfully denied him FMLA leave, and retaliated against him for having made that FMLA request by terminating his employment. Unfortunately for the employer, the court last month denied its motion for summary judgment, so its options now are to head to trial or, perhaps more likely, settle. The most notable aspect of the case is the court’s finding that the plaintiff’s bronchitis qualified him for FMLA protection. Indeed, the plaintiff’s claims are riding on that crucial point — his illness must meet the law’s definition of a qualifying “”serious health condition”” or the law affords no relief. Notwithstanding his doctor’s certification note, the City’s human resources professionals reached the opposite conclusion (i.e. that his bronchitis did not fit the “”serious health condition”” bill). Relying upon that conclusion, the City not only denied his request for FMLA leave, but also terminated his employment. The HR finding therefore gives rise to potential liability on two fronts: as an act of prohibited “”interference”” and also as an adverse employment action allegedly taken in retaliation for his exercise of FMLA rights.

What’s particularly troubling about this case is that the City’s determination to deny FMLA coverage for the plaintiff’s bronchitis is neither indefensible nor unusual. It is well accepted in the HR world that the common cold and other respiratory virus strains fall outside of the FMLA’s ambit, so denial of protected leave for such illnesses occurs with some frequency. The distinguishing feature of the plaintiff’s illness in this case is the fact that his doctor prescribed antibiotics. That prescription, according to the court, supported a finding that the plaintiff was receiving a continuing course of treatment, thereby warranting FLSA coverage.

So that other employers covered by the FMLA may learn from the City of Naples’ mistake, a brief recap of FMLA fundamentals is in order. First, and perhaps somewhat reassuringly, not all employers are subject to FMLA requirements. The Act applies to most public-agency employers regardless of size, but only to those private employers with 50 or more employees. Smaller private employers can therefore breathe something of a sigh of relief (though, as an aside, they should not let down their guard entirely, given the recent proliferation of state and local paid sick leave laws that add a relatively confusing web of additional requirements and concomitant unpredictability of results). An employee is eligible for the rights conferred under the law if he or she has worked for the employer for a year and has worked more than 1,250 hours during the preceding 12-month period. This takes many part-time workers, and most new hires, outside of the Act’s scope.

Beyond these threshold coverage limitations, and most relevant here, the FMLA affords the right to take up to 12 weeks of unpaid leave, with certain job-protection guarantees upon return, only to those covered employees whose circumstances meet the Act’s specific requirements. These requirements fall into two main categories: (1) the birth or adoption of a child; and (2) the “”serious health condition”” of the employee or of the employee’s spouse, son, daughter or parent. The Naples case ultimately turned on the key determination of whether the plaintiff’s bronchitis was a covered “”serious health condition.”” The HR Department determined that it did not, but the court in its recent ruling concluded that trial was needed to resolve disputed questions about that point.

In order to prove that his bronchitis amounted to a “”serious health condition”” so as to garner FMLA protection, the plaintiff had to show that his illness incapacitated him (rendered him unable to work) for more than three days, and that he either received “”treatment”” from his doctor at least twice, or saw his doctor once, resulting in a “”regimen of continuing treatment.”” An employee suffering from a common cold or other respiratory virus usually cannot meet these qualifications because such conditions, absent some extenuating circumstance or exacerbating ailment, do not require multiple treatments from a health care provider and warrant no prescription medication — the touchstone for “”continuing treatment”” under the FMLA regulations.

The City of Naples argued on summary judgment that plaintiff’s bronchitis didn’t qualify as a serious health condition under either the multiple-treatment prong or the continuing-treatment prong of the regulation’s definition, but the court rejected its contentions on both grounds. First, as to multiple treatments, Naples contended that the plaintiff received “”treatment”” from his doctor only once, when he first became ill, and that his subsequent office visit occurred only for the purpose of obtaining the doctor’s permission to return to work. The court, however, rejected the City’s argument, finding a fact question concerning whether plaintiff’s doctor actually examined him on the second visit, seemingly treating examination as a proxy for “”treatment”” under the law. Likewise, the court found a fact question precluding summary judgment as to whether the doctor’s prescription antibiotics amounted to “”continuing treatment”” or not. The City argued that the antibiotics were merely preventive (and therefore not “”treatment”” in the sense that the law contemplates), but the court again concluded that reasonable minds could differ on the purpose of the prescription, necessitating trial.

The moral of the story seems to be that employers must be diligent and discerning when assessing the applicability of the FMLA to an employee who misses work more than three days due to an illness that society generally deems “”common”” (i.e. not “”serious””). Where the employee has visited the doctor at least twice, or the doctor has prescribed the employee medication, a court could find that the law’s protections apply, as the Naples case demonstrates. And once the law’s protections are triggered, a panoply of restrictions and responsibilities ensue. Best not to open that Pandora’s Box unless doing so well-advised of the potential consequences.