Robin Morris was terminated from his position as store manager for Family Dollar following his return from a week of approved leave to visit his mother. During his visit, his mother underwent an outpatient needle biopsy of a lump in her left breast. Immediately following the biopsy, the mother was hospitalized. On her release from the hospital the mother was bedridden for at least four consecutive days. During this time the mother complained of headaches, stomach problems, dizziness form the anesthesia administered during her biopsy, and pain and discomfort in her breast. The mother testified that Morris "had to take care of her every day needs" during this period. Morris testified that, post-biopsy, his mother needed help getting in and out of the shower and with household chores, that she had trouble walking. When asked during deposition whether he considered his mother to be incapacitated, he said "no." Follow-up visit with her doctor 10 days after the biopsy the mother confirmed that the lump was benign.
At issue in the subsequent lawsuit was whether the mother had an FMLA-covered serious health condition. Specifically, whether the mother received continuing treatment by a health care provider involving a period of incapacity of more than three consecutive calendar days, that also involves treatment two or more times by a health care provider, or treatment by a health care provider on one occasion followed by a regimen of continuing treatment under the supervision of a health care provider. 29 CFR 825.114(a)(2)(i). The case was governed by the DOL regulations that existed prior to issuance of the new, modified regulations (which went into effect January 16, 2009).
The Sixth Circuit found that an outpatient procedure with a follow-up appointment "is not a regimen of continuing treatment" nor "does it constitute treatment two times or more by a health care provider." Critically, the Sixth Circuit opined:
As the district court commented, "the
Court has serious doubts as to whether an outpatient needle biopsy
with one follow-up visit two weeks later would constitute a 'serious
medical condition' for purposes of the FMLA...(citation omitted). We
agree. The outpatient needle biopsy involved neither inpatient
treatment not continuing treatment by a health care provider and simply
does not satisfy the plain meaning of "serious health condition" in the
relevant statutory and regulatory language."
Because Morris failed to establish that his mother had an FMLA-covered serious health condition, the Court affirmed the award of summary judgment to Family Dollar on his interference claim.
Comment: The decision is interesting on two counts: (1) the Court's reliance on Jones v. Denver Public School, 427 F.3d 1315, 1321 (10th Cir. 2005); and (2) the Court's limited view of "treatment."
In Jones, the Tenth Circuit held that the two health care provider treatments must occur within "more than three consecutive calendar days" of incapacity. In revising the newly effective regulations (29CFR 825.115(a)), the DOL explicitly rejected Jones as too restrictive. See 73 FR 67934, 67948 (Nov. 17, 2008). However, recognizing the need for some temporal limitation on when the two health care provider treatments should occur, the DOL added the requirement that the first treatment must generally occur within 7 days of incapacity and the second treatment must occur within 30 days of the first incapacity. 29CFR 825.115(a)(1)-(3).
Here, the mother met the DOL's
revised standard. The first day of incapacity was the same day as the
biopsy. The mother was arguably bedridden for four consecutive days
thereafter. Finally, she saw her doctor within 30 days of the biopsy.
The new FMLA regulations also made it clear that health care provider treatments must be done in-person. 29 CFR 825.115(a)(3). The DOL clarified that treatment "does not include, for example, a phone call, letter, email, or text message." 73 FR 67934, 67948 (Nov. 17, 2008). The "old rules" did not mandate that "treatment" must be in-person. The issue was unaddressed. Here, the outpatient examination was conducted in-person by a health care provider.
What is perhaps more interesting is that the Sixth Circuit decision does not even mention the DOL's explicit rejection of Jones. While the decision recognizes that the DOL issued new regulations and correctly determined that they did not apply retroactively, the Sixth Circuit did not even look to the new regulations for any type of guidance on the meaning of "treatment." Again, the formerDOL regulations (29 CFR 825.114(b)) did not define "treatment" to exclude outpatient procedures. Nor did it explicitly rule out a follow-up inpatient doctor visit. The comments accompanying the new regulations, however, explicitlyrejected Jones.
What is most interesting is the Court's extraordinarily limited interpretation of what constitutes "treatment." The FMLA has always defined "treatment" to include (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition. 29CFR 825.113(c)(2009); 29 CFR 825.114(b)(former rules). Excluded from "treatment" are routine physical examinations.
It is unclear how the administration of a test by a health care provider with local anesthesia to evaluate whether a breast lump is cancerous does not fall within regulations broad definition of treatment. Nor is it clear how an inpatient follow-up visit with the health care provider on the same subject is not part of the same evaluation process. The mother did not go to the doctor ten days later for her annual physical after all.
The Court's decision appears to use
the location of health care provider treatment as a proxy for the
"seriousness" of the health condition. Such use is not mandated by the
FMLA. Nor does it appear to make much sense.
Under the Court's uncharitable interpretation, an eligible employee would not be entitled to FMLA to care for a severely ill and aged parent on their death bed at home if the doctor was kind enough to evaluate the patient's condition during home visits rather than forcing the ill parent to go through the expense of staying in a hospital or securing ambulance transportation for the privilege of being treated in the doctor's office. The interpretation would all but exclude FMLA coverage in remote areas with limited medical care where doctors and other health care providers, of necessity, still make house calls.
Employers should be very cautious with this decision. The Sixth Circuit covers Michigan, Ohio, Kentucky, and Tennessee.