Family and Medical Leave Act (FMLA) -- Three Full Days of Incapacity Needed Under FMLA Regulation, Court Decides

Date: January 22, 2004
A Labor Department regulation requiring that an employee be incapacitated for three consecutive days to have a serious health condition under the Family and Medical Leave Act is valid, and it is properly understood as requiring three full days of incapacity, the U.S. Court of Appeals for the Eleventh Circuit recently ruled (Russell v. North Broward Hospital) U.S. Ct. of App., 11th Cir., 10/2/03). With this ruling, the court affirmed North Broward Hospital’s win over Margaret Russell on her claim she was fired for absences protected by the FMLA. In a matter of first impression among the federal courts of appeal, Judge Ed Carnes, joined by the two other judges on the panel, rejected Margaret Russell’s argument that partial days of incapacity count toward the three-day threshold. Under the interpretation “which Russell urges upon us, courts and juries would continually confront confounding issues about how much incapacity on a given day is enough for that day to count toward the regulatory requirement. Are five hours enough? Fifty minutes? Fifteen minutes?” the court asked. The bright-line rule in the Labor Department’s regulation gives certainty to the law, it concluded. History of Attendance Problems. Russell began working for the Broward County, Fla., hospital as a “patient accounts adjustment representative” in June 1996. By mid-January 2000, she had been disciplined for attendance problems several times, the court said, culminating in a three-day unpaid suspension and a warning that termination would follow if her absenteeism continued. In May 2000, she slipped and fell on the job. She went to the employee health department, where she was diagnosed with a fractured right elbow and a sprained ankle. She later learned that her ankle actually was fractured. When she fell, she also aggravated an existing wrist condition for which she was already receiving treatment, the court recounted. Over the next 10 days, Russell was absent from work intermittently to attend doctor’s appointments related to the fall. She also left early a few times due to pain resulting from her injuries. At least twice, she did not report to work and she did not call in to explain her absence. She was fired June 13 for excessive absenteeism. Jury Puzzled by ‘Serious Health Condition.’ Russell sued, claiming that the hospital retaliated against her for exercising her FMLA rights. She claimed that under the FMLA, she had the right to be absent from work for the period of May 31 through June 9 for a serious health condition. The district court, over objection by Russell’s attorney, instructed the jury that more than three consecutive calendar days of incapacity could constitute a “serious health condition.” The district court told the jury that “three consecutive calendar days, 72 hours or more” were required. The jury found for the hospital, and the district court denied Russell’s subsequent motions for judgment as a matter of law or a new trial. Court examines regulation. Under the FMLA, the court said, a “serious health condition” entitling a worker to 12 weeks of leave per year is defined as “an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider” (29 U.S.C. §2611(11)). “Continuing treatment by a health care provider” is defined by DOL regulations as including a period of incapacity of more than three consecutive calendar days and certain subsequent treatment or periods of incapacity relating to the same condition (29 C.F.R. §825.114(a)(2)(i)). On appeal, Russell contended that she established seven consecutive partial days of incapacity and maintained that partial days of incapacity always, as a matter of law, meet the regulatory definition’s requirements. She did not argue that at any point she suffered from an incapacity lasting three or more full days, the court observed. “The plain language of §825.114 – ‘a period of incapacity . . . of more than three consecutive calendar days’ – points the way to resolution of the issue,” the court said. Accepting the “universally understood” meaning of a “calendar day” – the period from one midnight to the following midnight – the court ruled that “calendar day” refers to a “whole day, not to part of a day, and it takes some fraction more than three whole calendar days in a row to constitute the ‘period of incapacity’ required under §825.114.” “If we interpret §825.114 as a requiring full days of incapacity, as we do, the requirement will ensure that ‘serious health conditions’ are in fact serious, and are ones that result in an extended period of incapacity, as Congress intended,” the court said. Regulation Upheld. Russell argued in the alternative that even if the regulation requires more than three consecutive full days of incapacity, it is invalid. “It does, but it isn’t,” the court responded, rejecting the argument. Even though the FMLA does not explicitly say that three consecutive calendar days of incapacity are needed for a medical condition to qualify as a “serious health condition,” the court said, “Congress entrusted the task of drawing the fine lines to the Department of Labor.” In this case, the court said, “the Department’s linedrawing is reasonable and consistent with the underlying intent behind the FMLA.” The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.