Q: One of my employees complained of chest pains at work and later went to the emergency room at the local hospital. However, we have learned through his medical certification that he was not admitted to the hospital until after midnight. He spent most of the day in the hospital and was discharged later that same day. In total, he missed two days of work. Is this absence covered by the FMLA?
A: Under the FMLA, an employee can take job-protected leave for “any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital.” So, your employee’s protection under the FMLA hinges on whether his visit to the hospital is considered an overnight stay.
Consider this scenario, which answers our question: Jeff (a fabulous name, as an aside) worked for a tool manufacturer and had a history of heart problems. One day he was having chest pains at work — curiously, they occurred as he was being disciplined for sleeping on the job — and he asked his supervisor if he could leave work to go to the hospital. The supervisor granted his request to leave work.
Jeff arrived at the hospital before midnight, but was not admitted until after midnight. He remained in the hospital for 14 hours, at which point he was released. He missed work that day and was fired for “walking off the job.” There must be another story we’re missing here, but we’re not privy to it. Jeff (which may not be a fabulous name after all), filed suit, claiming FMLA interference and retaliation.
The Court Ruling
The FMLA regulations define “inpatient care” as “an overnight stay in a hospital, hospice, or residential medical facility, including any period of incapacity as defined in 29 C.F.R. Sec. 825.113(b), or any subsequent treatment in connection with such inpatient care.”
Therefore, the appellate court reviewing Jeff’s case was charged with defining “overnight stay” under the FMLA. Earlier, the trial court had determined that the employee had to stay at the hospital from “sunset on one day to sunrise the next day.” That was not workable, according to the appellate court. After all, how could that principle work on a wintry December day in Fairbanks, Alaska, where those poor souls live in near darkness the entire day?
Ultimately, the court determined that an “overnight” stay had to constitute a “substantial period of time” from one calendar day to the next calendar day “as measured by the individual’s time of admission and time of discharge.” Here, Jeff did not satisfy this test — although he arrived at the hospital before midnight, he was not admitted until after midnight. Thus, his hospital stay did not span one calendar day to the next and was not protected by the FMLA.
Although it was not applicable in this case because Jeff did not stay overnight, the court also advised that the individual must remain overnight for a substantial period of time. In other words, if the employee is admitted at 11:59 p.m. and discharged one hour later at 1:00 a.m., this would not constitute an overnight stay protected by the FMLA. Short of creating a bright line rule, the court suggested that “a minimum of eight hours would seem to be an appropriate period of time.” But it left closer analysis of this eight-hour time frame to another day.
A 57-page decision to decide all of that. Must have been written by a true FMLA wonk, and I like it! You can read the decision here: Bonkowski v. Oberg Industries
Jeff Nowak is a Partner at the law firm of Franczek Radelet and serves as co-chair of the firm’s Labor and Employment Practice and was named by Law Bulletin Publishing as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012. Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits. Jeff is the author of the firm’s highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2014) and was also voted the No. 2 Labor and Employment blog by LexisNexis.
The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.