Family and Medical Leave Act (FMLA) Update

Since the FMLA took effect more than four years ago, courts have struggled with what illnesses constitute "serious health conditions" to trigger coverage under the Act. While some courts have recognized that not all illnesses and absences constitute serious health conditions,
see Bauer v. Varity Dayton-Walther Corp., 118 F.3d 1109 (6th Cir. 1997) (holding that one day absence for hematochezia, or passage of bloody stools, failed to constitute a serious health condition under the FMLA); Murray v. Red Kap Industry, Inc., 124 F. 3d 695(5th Cir. 1997)(limiting FMLA coverage to narrow period where physician authorized employee's absence), other courts have attempted to expand the FMLA's coverage to absences not formerly recognized as serious health conditions under the Act. See Price v. City of Fort Wayne, 117 F.3d 1022 (7th Cir. 1997)(holding that serious health condition may exist if a series of minor health conditions were linked together to constitute one "serious" condition).

Most recently, the Third Circuit further expanded the definition of a serious health condition. Victorelli v. Shadyside Hospital, No. 96-3597, slip. op. (3d Cir. Nov. 3, 1997) The Victorelli decision is of particular importance because it restricts an employer's ability to terminate an employee for excessive absenteeism where the employee alleges that the absences were caused by a chronic condition, in this case, a peptic ulcer. Because it is difficult to distinguish between an employee who abuses an attendance policy from an employee who legitimately requires sporadic absences from work due to a chronic medical condition, employers must be even more aware of the reasons for an employee's absences so that absences protected by the FMLA do not form the basis for an adverse employment action.

For the full story, please view the PDF.