Family & Medical Leave Act Update
Margaret worked in a clerical position for a hospital. During the first three years of her employment, she was disciplined several times for unexcused absences, and she risked termination if her absenteeism continued. Then, Margaret slipped and fell while at work, fracturing her elbow and ankle and aggravating an existing wrist condition. Over the next 10-day period, she worked only one complete workday. Margaret missed parts of the remaining workdays because she had medical appointments, or was not feeling well, or both.

The hospital, seeing these absences as the straw that broke the camel’s back, fired Margaret for excessive absenteeism. Margaret sued her ex-employer, contending that her absences after her fall were protected leave under the federal Family and Medical Leave Act (FMLA). A federal court ruled that the hospital was free to fire Margaret without running afoul of the FMLA.

The outcome in Margaret's case turned on a fine distinction about language in the FMLA and a regulation issued under it. The FMLA provides that an eligible employee can take up to 12 workweeks of leave during any 12-month period because of a "serious health condition" that makes the employee unable to perform the functions of the employee’s job. After taking such leave, an employee must be reinstated to the position held before the leave. Part of the statute's definition of "serious health condition" is a condition that involves "continuing treatment by a health care provider." That phrase is not defined in the FMLA itself, but a Department of Labor regulation describes it as including "a period of incapacity . . . of more than three consecutive calendar days." Incapacity refers to the inability to work or perform other regular daily activities.

Margaret argued to no avail that she had been incapacitated for more than three consecutive calendar days, and that she therefore had taken only protected leave for a "serious health condition." The problem was that she missed work for only a part of all but one of the days in question. The court reasoned that a "calendar day" is commonly understood to mean a whole day, from midnight to midnight. Thus, to be afforded protection under the FMLA, the period of incapacity must last for more than 3 whole days, that is, 72 consecutive hours. In addition to parsing the language from the regulation, the court ruled that the incapacity either extends for over 72 straight hours, or it does not. By contrast, under the interpretation argued for by Margaret, more issues would arise about how much incapacity on a given day is enough for that day to count toward the requirement in the regulation. The court was "loathe to adopt a strained interpretation of a regulatory provision that would result in employers, employees, and courts facing an uncertain and ever-shifting legal landscape."