So Where are We Now? Medical Marijuana and Employment in Michigan.

“I’ve been thinking about this, Mr. Hand.  If I’m here and you’re here, doesn’t that make it our time?  Certainly, there’s nothing wrong with a little feast on our time.”

 Jeff Spicoli – Fast Times at Ridgemont High.

I’m telling you, it took me longer to find a quote somehow related to marijuana I could use in this thing then it did to do the research on the state of the law.  Spicoli, the lovable stoner from Fast Times at Ridgemont High, was the best I could do.  And he makes a point—if I’m at work and my boss is at work, doesn’t that make it our time and not just my boss’s time?  And don’t I have a right to take my medication so that I am not in pain on my time, or our time or whatever we are going to call work time?  Why do I ask?  Because when it comes to the use of medical marijuana, that question is getting a bit harder to answer than it used to be.

We are going to talk about the law in Michigan.  And we do that for two reasons.  First, I practice in Michigan.  Second, Michigan is on the verge of having a whole new flood of legal Medical Marijuana dispensaries.  Now, we are not going to talk about dispensaries and licensing and any of that other stuff; we are going to talk about medical marijuana and employment.

Let’s start with the statue.  The Michigan Medical Marihuana Act is what we are talking about here.  (Ok, before you say anything about the spelling, I did not spell marijuana that way, the state did, what a bunch of squares, right?)  The Act, among other things, provides for the use of medical marijuana under state law and “provide[s] protections for the medical use of marihuana” when recommended by a physician for “debilitating medical conditions.”  Section 4 of the Act specifically states:  “A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business . . . for the medical use of marihuana. . . .”

Seems pretty clear.  You can’t fire someone for using medical marijuana, end of story, right? Not so fast dude!  You see, section 7 of the Act states:  “Nothing in this act shall be construed to require . . . An employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.”  Oh, so now I can fire somebody for using medical marijuana, right?

I’m confused, are you?  So how is this going to work?  Well, the courts are going to decide, and they have.

In Casias v. Wal-Mart Stores, Inc.,  (which I wrote about here), the court held that an employer could fire an employee who tested positive for marijuana during an employer required drug test even if that employee had a card.  Judge Jonker stated:  “The fundamental problem with Plaintiff’s case is that the MMMA does not regulate private employment.  Rather, the Act provides a potential defense to criminal prosecution or other adverse action by the state.”  Judge Jonker went on to note that the employee’s public policy argument would “confer on medical marijuana patients, rights, to this point conferred only on a select group of people based on immutable characteristics like race, sex and religion.”  Judge Jonker also stated:  “Further, the MMMA does not indicate a general policy on behalf of the State of Michigan to create a special class of civil protections for medical marijuana users.”  The case was appealed and the Sixth Circuit agreed:  “We agree with the district court and find that the MMMA does not impose restrictions on private employers, such as Wal-Mart.”

I can hear you asking now, “So Steve, why are we having this conversation?  Doesn’t that settle it, I can fire my employees if they test positive for marijuana?  Well?  Doesn’t it?”

Yes, it does, sort of.  That is the law in Michigan right now.  But there are a couple of things I want you to be aware of.  First, other states are going in different directions.

On May 3, 2017 the Superior Court in the State of Rhode Island broke with what most other courts, including Judge Jonker and the 6th Circuit, have done and found that an employer’s enforcement of a neutral drug testing policy to deny employment to an applicant was a violation of the Rhode Island state law.  Before I start with this, I just have to point out one really cool thing.  The judge started the case with this quote:

“I get high with a little help from my friends”

—The Beatles, 1967

Come on, you have to love a judge that starts his or her opinion with a quote from the Beatles.

Anyway, Plaintiff Christine Callaghan brought an action against Defendants Darlington Fabrics Corporation alleging employment discrimination with respect to hiring for an internship position because she held a medical marijuana card.   Ms. Callaghan was a masters student and she wanted an internship.  During her interview Ms. Callaghan disclosed that she held a medical marijuana card.  The interview concluded shortly thereafter.  A couple of days later, the company HR rep and another employee had a conference call with Ms. Callaghan and asked her if she was currently using medical marijuana.  She said yes.  The HR rep responded by informing Ms. Callaghan that a positive test would “prevent the Company from hiring her.”  Ms. Callaghan told the HR rep that she was allergic to many other painkillers and that she would neither use marijuana at work or bring it to the workplace.  That did not seem to matter to the company.

Now the Rhode Island Law states:  “No school, employer, or landlord may refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder.”   Sound familiar?  The Michigan law states “A qualifying patient who has been issued and possesses a registry identification card shall not be subject to . . . penalty in any manner, or denied any right or privilege, including but not limited to . . . disciplinary action by a business . . . for the medical use of marihuana . . . .”  Other than Michigan not being able to spell marijuana, sounds pretty close to me.

The Rhode Island Court also pointed out “also relevant to this inquiry. Section 21-28.6-7(b)(2) states that “[n]othing in this chapter shall be construed to require . . . [a]n employer to accommodate the medical use of marijuana in any workplace.”  Again, sounds a lot like Michigan.  Remember, “Nothing in this act shall be construed to require . . . An employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.”

But the Rhode Island Court did went the other way.  First, they implied a private right of action into the Rhode Island statute that allowed Ms. Callaghan to sue in the first place and then the Court held:  “Plaintiff was denied the opportunity to apply for a job with Defendants because she believed she could not pass the pre-employment drug test.   Plaintiff did inform Defendants that she was a medical marijuana cardholder and that she would obey state law and not bring marijuana into the workplace.  Defendants do not contest that they denied her employment based on the fact that she could not pass the drug screening. Therefore, Defendants have violated the []Act.  As a result, the Court grants Plaintiff’s motion for summary judgment and correspondingly denies Defendants’ motion.”

You can see the case here and Wow!

But again, you ask, what has that got to do with Michigan? Well, we have to deal with Braska v Challenge Manufacturing.  I have written about this one before too.  See it here.

You see, Judge Jonker is a federal judge and the 6th Circuit is a federal court and their decisions when it comes to state law, while persuasive, are not binding on the state courts.  So what has Braska got to do with this?  Well, Braska involved an employee (actually three employees) who were terminated for testing positive for marijuana.  The Court had to decide whether an employee who possesses a registration identification card under the MMMA is disqualified from receiving unemployment benefits after the employee has been terminated for failing to pass a drug test.  Spoiler alert, the employees won and got the benefits.

So the Braska Court started with the proposition that the Michigan unemployment statute disqualifies people for benefits for “testing positive on a drug test, if the test was administered in a nondiscriminatory manner.”  Isn’t that what happened here?  The employees tested positive on a drug test administered in a nondiscriminatory manner or at least that is what the state argued.

So what’s up with that?  How come an employer has the right to fire the employee, the statute disqualifies them from getting benefits, but the employee can still get unemployment compensation?

Here is what the Michigan Court of Appeals said.  First, the court noted that the MMMA has a broad preemption provision which says:

 . . . ‘[a]ll other acts and parts of acts inconsistent with this act do not apply to the medical use of marihuana as provided for by this act.’

So that disqualifier in the unemployment statute, yeah, it does not matter if the employee has a card and as long as the employee is not otherwise violating the MMMA by, for example, “being under the influence at work” or “using at work.”  Now using at work, that is easy, but being under the influence?   How do we know that?  Most drug testing policies state any positive test is under the influence and we don’t have cut off lines like we do with alcohol.  So what do we do?  Good question. But in Braska if did not matter because the state never alleged the employees were under the influence, only that they didn’t pass the test.

Second, the court noted that the MMMA says that people with cards who are using marijuana in accordance with the MMMA:

. . . ‘shall not’ . . . be denied any ‘right’ or ‘privilege,’ ‘including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau. . . .

And the court held:

Applying this definition to the present case, we conclude that denial of unemployment benefits under § 29(1)(m) constitutes a ‘penalty’ under the MMMA that was imposed upon claimants for their medical use of marijuana.

So, the summary is that the MMMA trumps the unemployment act and denying unemployment benefits just because of a positive test for someone who properly has a card is a penalty imposed by the state in violation of the MMMA.

But what about the Casias case?  Well, the court dealt with that too.  First, they basically said Casias is not binding on the Michigan Court of Appeals because this is a question of Michigan law and Casias was a federal case.  “The Casias decision is not binding precedent on this Court.  (noting that, “[o]n questions of state law, Michigan courts are not bound by foreign authority.” Then the court stated:

Moreover, unlike in Casias, in this case, we are not presented with the issue of whether the MMMA’s immunity clause applies in cases involving action solely by private employers.  The issue raised in this case is not whether the employers violated the MMMA because they terminated claimants.  The issue is whether, in denying unemployment benefits, the MCAC—a state actor—imposed a penalty upon claimants that ran afoul of the MMMA’s broad immunity clause.  When an individual is denied unemployment benefits, the employer’s conduct is not at issue, but rather, the denial involves state action.  See Vander Laan v Mulder, 178 Mich App 172, 176; 443 NW2d 491 (1989).

You see, ultimately the court decided that determining who gets or does not get unemployment is up to the state and not the employer and that makes Casias different.

So what does all of this mean?  Well, for now, those of us who work in Michigan can still fire an employee or even not hire an employee if they fail a drug test, even if they have a medical marijuana card.  I say for now, because it won’t be long before the Michigan courts are asked to answer this question.  And it is not altogether clear that they will follow the federal court’s logic.  And now that Rhode Island has gone the other way, it won’t be long before other states follow suit.  And for now, unless you can prove that the employee either used and work or is under the influence of marijuana (and how do you do that) when you do fire them they are going to get unemployment.

We will keep our eyes open to see what goes on in the courts and the legislature.  In the meantime, if you are an employer dealing with these issues and if you have questions give us a call.

Why? A Serious Health Condition under the FMLA – Part 8.

OK, this is it.  We are almost done with the definition of a serious health condition.  I’m serious.  Let’s deal with chronic conditions.  You know, the sorts of health conditions a person might get that just does not go away.  Like asthma or diabetes or epilepsy.  How do these kinds of conditions fit into the definition of a serious health condition?

Let’s start with the definition again:

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

29 CFR §825.113(a).

And back to §115 we go.

A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:

* * *

(c) Chronic conditions. Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:

(1) Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider;

(2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and

(3) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).

29 CFR §825.115(c).

So we have three things we need for a condition to be “chronic” and we will start from the bottom and work our way up.  First, the condition may cause “episodic” incapacity.  You know, once in a while.  Like when the weather is bad (or really good he said dripping with sarcasm) and the employee gets an asthma attack.  The condition has to continue over an extended period of time – again, like asthma.  It doesn’t just go away with treatment. And finally, the condition requires periodic visits to the doctor.  And here is where it gets complicated.  You have to see the doctor at least twice per year.    What is twice per year?  According to Lusk v. Virginia Panel Corporation, Civil Action No. 5:13cvO79 (W.D. Vir. 2014), twice per year means that the employee saw a doctor at least twice in the year preceding her need for leave.

Lusk was not treated at all for her mental health condition in the year preceding her alleged FMLA leave on January 16, 2013, and neither did she have a certification from her doctor that she suffered from a chronic condition.  In short, given the evidence addressed at summary judgment, the court cannot conclude as a matter of law that plaintiff Lusk falls within this FMLA category.

So that isn’t a “chronic condition” under the FMLA.  And remember, the general doctor’s visit and three day incapacity rules don’t apply to chronic conditions just like they don’t apply to pregnancy.

(f) Absences attributable to incapacity under paragraph (b) or (c) of this section qualify for FMLA leave even though the employee or the covered family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive, full calendar days. For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack or because the employee’s health care provider has advised the employee to stay home when the pollen count exceeds a certain level. An employee who is pregnant may be unable to report to work because of severe morning sickness.

29 CFR §825.115(f).

Let’s get a couple of more things out of the way.  You can also get time off for a “permanent or long-term condition,” which is different from a chronic condition and for “conditions requiring multiple treatments.”

(d) Permanent or long-term conditions. A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer’s, a severe stroke, or the terminal stages of a disease.

(e) Conditions requiring multiple treatments. Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, for:

(1) Restorative surgery after an accident or other injury; or

(2) A condition that would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), or kidney disease (dialysis).

29 CFR §825.115(d) & (e).

Why? A Serious Health Condition under the FMLA – Part 7.

We are still in section 115 of the Regulations but now we are going to talk about treatment as it relates to a pregnancy and “chronic conditions.”  You see, in addition to your regular old serious health condition that we have been discussing in the last six – yes, six – posts, an employee may also be eligible for leave for treatment for pregnancy or a chronic condition.  We will focus on pregnancy for this post and get to chronic conditions with the next one.

As has become our habit, and in case you are not reading every post on this captivating topic (and if you are not, shame on you), let’s recap:

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

29 CFR §825.113(a).

Let’s start with pregnancy.  The Regulations say:

A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:

* * *

(b) Pregnancy or prenatal care. Any period of incapacity due to pregnancy, or for prenatal care. See also §825.120.

29 CFR §825.115(b).

Ok, so what does §825.120 say?  We are going to skip most of this, because we will deal with it when we come to that Regulation, but as it pertains to the mother giving birth:

(a) General rules. Eligible employees are entitled to FMLA leave for pregnancy or birth of a child as follows:

* * *

(4) The expectant mother is entitled to FMLA leave for incapacity due to pregnancy, for prenatal care, or for her own serious health condition following the birth of the child. An expectant mother may take FMLA leave before the birth of the child for prenatal care or if her condition makes her unable to work. The mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from a health care provider during the absence, and even if the absence does not last for more than three consecutive calendar days. The expectant mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from a health care provider during the absence, and even if the absence does not last for more than three consecutive calendar days.

29 CFR §825.120(a)(4).

So mom gets time off for any incapacity due to pregnancy.  The Reg goes on to say that the mother gets time off before the birth for “prenatal care or if her condition makes her unable to work.”  Say, for example, the doctor puts her on bed rest before the birth.  Or for prenatal care, like for doctor’s appointments before the birth.  She also gets time off for her own serious health condition following the birth of the child – say, complications from a difficult delivery or to recover after a C-section. And one more thing to keep in mind here, they have to have a doctor’s visit and the three day incapacity rules don’t apply here:  “The expectant mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from a health care provider during the absence, and even if the absence does not last for more than three consecutive calendar days.”  Out sick due to morning sickness – covered.  Don’t believe me?  Let’s go back to §115.

(f) Absences attributable to incapacity under paragraph (b) or (c) of this section qualify for FMLA leave even though the employee or the covered family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive, full calendar days. For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack or because the employee’s health care provider has advised the employee to stay home when the pollen count exceeds a certain level. An employee who is pregnant may be unable to report to work because of severe morning sickness.

29 CFR §825.115(f).

 

Why? A Serious Health Condition under the FMLA – Part 6.

Yes, we are still talking about what a serious health condition is.  But now we are going to talk about a “regimen of continuing treatment.”

As has become our habit, and in case you are not reading every post on this captivating topic (and if you are not, shame on you), let’s recap:

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

29 CFR §825.113(a).

But this time, instead of the two treatments thing, we are going to discuss the “regimen of continuing treatment.”

(2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

29 CFR §825.115(a)(1)&( 2).

So just what is this “regimen of continuing treatment”?  Pretty simple actually:

* * *

A regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (e.g., oxygen). A regimen of continuing treatment that includes the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed-rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider, is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave.

29 CFR §825.113(c).

So it is prescription medication, or therapy or something you need the health care provider in order to get it, and not just drink plenty of fluids and take an aspirin.  Simple enough.

Next time, pregnancy.

Why? A Serious Health Condition under the FMLA – Part 5.

Back to a serious health condition and what it means.  As we always do, we will start out with a little refresher:

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

29 CFR §825.113(a).

And of course we are talking about the continuing treatments part of that definition.  Remember, last time we left off with when the second of the two treatments have to take place.

(1) Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or

(2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

29 CFR §825.115(a)(1)&( 2).

So the second treatment has to take place within 30 days of the first day of incapacity.  I got sick on Monday the 1st.  Have to have two treatments by the 30th.  But who decides?  Do I just get to decide to go back to the doctor a second time and, voila, I have a serious health condition?  Nope, the doctor decides.

Continuing treatment by a health care provider means any one of the following:

* * *

(iv) Whether additional treatment visits or a regimen of continuing treatment is necessary within the 30-day period shall be determined by the health care provider.

29 CFR §825.102.

OK, so the doctor decides.  But is it a serious health condition if the second treatment does not occur until after the employee is no longer sick?  Well, that might depend on where you live.  In Jones v. Denver Public Schools, 427 F.3d 1315 (10th Cir. 2005), the Court said the health condition must be sufficiently serious that it entails an absence of more than three consecutive calendar days during which the employee obtained treatment by a health care provider at least two times.  But in Summerville v. Esco Company, 52 F. Supp. 2d 804 (W.D. Mich. 1999), the court held “Rather, the regulation by its plain language merely requires two or more treatments, without distinguishing between treatments occurring during or after the initial period of incapacity.”

Clear as mud, right?  I’m going with the Summerville Court, but I live and practice (mostly) in Michigan.  You might want to talk to your labor lawyer before you decide to tell an employee they are not covered by the FMLA because they did not have two treatments while they were sick.

Oh, and one more thing – that whole 30 day thing for the second doctor’s visit?  Does not apply if there are “extenuating circumstances.”  What is an extenuating circumstance?

(5) The term extenuating circumstances in paragraph (a)(1) of this section means circumstances beyond the employee’s control that prevent the follow-up visit from occurring as planned by the health care provider. Whether a given set of circumstances are extenuating depends on the facts. For example, extenuating circumstances exist if a health care provider determines that a second in-person visit is needed within the 30-day period, but the health care provider does not have any available appointments during that time period.

29 CFR .§825.115(a)(5).

See you next time when we will talk about a “regimen of continuing treatment.”

 

Why? A Serious Health Condition under the FMLA – Part 4.

Yes, yes, I know we are still talking about “serious health condition” and we have been for the last several posts.  But this is important stuff.  Most of your FMLA leaves are going to be for a serious health condition, either the employee’s or a family member’s.  So this might take a post or two more.

Let’s refresh:

According to the Regulations:

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

29 CFR §825.113(a).

So last time we talked about the “three consecutive days” thing.  You remember:

A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:

(a) Incapacity and treatment. A period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:

(1) Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or

(2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

29 CFR §825.115(a)(1)&( 2).

So we have that down, right?  A period of incapacity that lasts more than three consecutive days.  But that is not it.  The section also says:  “that also involves”.

So in addition to the three consecutive days, you need “continuing treatment by a health care provider”.

The Regulation gives you basically two different situations and says that means:

(1) Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or

(2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

Id.

Well, let’s break that down.  We will start with number 1, that makes sense.

You can have “treatment two or more times”.  OK, easy enough, you have to be treated by the “health care provider” at least twice.   Hold it, what does “treatment” mean?  Funny you should ask, because there is a definition:

Continuing treatment by a health care provider means any one of the following:

* * *

(iii) The requirement in paragraphs (i) and (ii) of this definition for treatment by a health care provider means an in-person visit to a health care provider. The first in-person treatment visit must take place within seven days of the first day of incapacity.

29 CFR §825.102.

OK, so treatment means an in-person visit with a health care provider.  But it must also mean more than that, right?  Yes it does.  Treatment also means:

(c) The term treatment includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations. A regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (e.g., oxygen). A regimen of continuing treatment that includes the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed-rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider, is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave.

29 CFR §825.113(c).

Man, we are all over these Regulations just to get to one definition.  So, treatment means an in-person visit with a health care provider “to determine if a serious health condition exists and evaluations of the condition”.

Now let’s touch on that two or more times thing.  First, as you can see, the “first in-person treatment visit must take place within seven days of the first day of incapacity.”  So I got sick on Monday, as a threshold issue I need to see the doctor within seven days of Monday.

OK, I think that is enough for today.  It’s enough for me anyway.  We will talk about that second visit next time.

Why? A Serious Health Condition under the FMLA – Part 3.

Remember how short the last post was?  Not this one.

So let’s go back.  According to the Regulations:

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

29 CFR §825.113(a).

Last time we talked about “inpatient care”.  This time we are going to talk about “continuing treatment”.

A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:

(a) Incapacity and treatment. A period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:

(1) Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or

(2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

29 CFR §825.115(a)(1)&( 2).

So the first thing we need for a serious health condition involving “continuing treatment” is a period of incapacity and treatment lasting “more than three consecutive full calendar days”.  So we start with incapacity.  Remember incapacity?

(b) The term incapacity means inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.

29 CFR §825.113(b).

And you didn’t even remind me.  So we have to have “incapacity”, which means the employee basically can’t do what they would normally do during the day, and it has to last for more than three consecutive, full calendar days.  A couple of things to point out there:

The incapacity has to last for “more than three consecutive days.”  Out sick Monday, Wednesday and Thursday does not count.  Not consecutive days.  Second thing you need to note is that it is “full calendar days”.  If the employee went home early on Friday, was still sick Saturday and Sunday and comes back to work Monday, that is not a serious health condition.  Not because of the Saturday and Sunday – if the employee can’t do his normal daily activities, those days count (remember, it is “calendar” not “work” days).  It does not count because that is not three “full” days.  The employee worked part of Friday, so he was clearly not incapacitated for the full day Friday.

We will get into this more next time.

Why? A Serious Health Condition under the FMLA – Part 2.

Boy, this post is going to be really short.  Remember last time when I told you that the definition of a serious health condition included:

. . . an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 . . . .

29 CFR §825.113(a).

Of course you remember.  So, what does “inpatient care” mean?  Simple:

Inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity as defined in §825.113(b), or any subsequent treatment in connection with such inpatient care.

29 CFR §825.114.

If you stay overnight in a hospital, or a hospice or a residential care facility, that is inpatient care.

That’s it.  Now I could stop there, but what kind of a lawyer would I be if I made it that simple? So let’s ask a question – what is an “overnight stay”?  Do we start the clock when the employee gets to the hospital or when they are actually admitted?  How long does the employee need to stay in the hospital for it to be “overnight”?  Will midnight to 5 a.m. do it?  11 p.m. to 7 a.m.? Something else?

According to one court, the 3rd Circuit in Bonkowski v. Oberg Indus., 787 F.3d 190 (3rd Cir. 2015), an “overnight stay” is one that lasts from one day to the next and lasts at least eight hours, as measured by the patient’s admission and discharge from the hospital.  Got that, starts in one day and ends in the next (or the one after that and so on) and is at least eight hours long.  Where do they come up with this stuff?  Beats me.

Why? A Serious Health Condition under the FMLA – Part 1.

Given what we covered last time, it should come as no surprise to any of you that we are now going to dig into the reasons for leave a bit.  What we should do is start with the birth of a child, but we are not going to.  Why, you ask?  I will tell you . . . because that is not the order the DOL wrote the regulations.  They start with serious health condition, so we will too.

So as you will recall, an eligible employee of a covered employer is entitled to take FMLA leave if the employee has a serious health condition or if the employee needs to care for a spouse, child or parent with a serious health condition.  That begs the question: What is a serious health condition?

According to the regulations:

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

29 CFR §825.113(a).

Ok, so a serious health condition is an “illness, injury, impairment or physical or mental condition.”  That is part 1.  And it involves either “inpatient care” or “continuing treatment” by a “health care provider.”   That is part 2.

So before we get to the definition of those terms, as we will obviously have to do, we have some other terms, and some caveats and some limiters.  No kidding!

First, new definition – what does incapacity mean?  Who cares, you say?  I don’t see incapacity anywhere in that definition you just gave us, you say.  True, you don’t, but it is going to be important when we get to the definition of “continuing treatment” so of course the DOL put it here.

(b) The term incapacity means inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.

29 CFR §825.113(b).

Now that is important, but it is important later, so we will come back to it.  Remind me, will you?  Now for the caveats and limiters.

(c) The term treatment includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations. A regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (e.g., oxygen). A regimen of continuing treatment that includes the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed-rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider, is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave.

29 CFR §825.113(c)

First thing you notice is we are talking about treatment again.  So treatment includes examinations to find out if you have a serious health condition and to evaluate the condition.  It is not a routine physical or other preventative sort of visits to the doctor.  A regimen of “continuing treatment” is prescription medication or therapy, but it is not taking over-the-counter medication or, for example, “getting plenty of rest and drinking plenty of fluids.”  So taking a couple of aspirins is not continuing treatment even if the doctor tells you to do it.  Again, that is going to be important so we will come back to it.

Finally, cosmetic treatments are not serious health conditions.

(d) Conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not serious health conditions unless inpatient hospital care is required or unless complications develop. Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave. Restorative dental or plastic surgery after an injury or removal of cancerous growths are serious health conditions provided all the other conditions of this regulation are met. Mental illness or allergies may be serious health conditions, but only if all the conditions of this section are met.

29 CFR §825.113(b).

So basic cosmetic treatments are not serious health conditions . . . unless (hey, that is a caveat to a caveat, leave it to the DOL!) “inpatient hospital care is required or unless complications develop.”  Headaches are not serious health conditions unless they are migraines (another caveat to a caveat).  And finally, mental illness or allergies are serious health conditions if the conditions contained in section 113 are met.  OK, I get that, but who bunches mental illness and allergies together like they are the same thing?  Only the DOL.

Why? Qualifying Reasons for Leave, the General Rule.

Over the last several posts we have spent a lot of time on the Who and even the What of the FMLA.  Now let’s get into Why.  Why can an employee take leave?  Pretty simple and straightforward to start with.

If you are a covered employer you have to grant leave to an eligible employee for 6 basic reasons:

(a) Circumstances qualifying for leave. Employers covered by FMLA are required to grant leave to eligible employees:

(1) For birth of a son or daughter, and to care for the newborn child (see §825.120);

(2) For placement with the employee of a son or daughter for adoption or foster care (see §825.121);

(3) To care for the employee’s spouse, son, daughter, or parent with a serious health condition (see §§825.113 and 825.122)

(4) Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job (see §§825.113 and 825.123);

(5) Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status (see §§825.122 and 825.126); and

(6) To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. See §§825.122 and 825.127.

29 CFR §825.112(a).

That’s it.  If an eligible employee has a child and to care for that child; if an eligible employee adopts a child or a child is placed with them for foster care; if an eligible employee has a spouse, child or parent with a serious health condition; if an eligible employee has a serious health condition; if an eligible employee’s spouse, child or parent is a member of the military on covered active duty (or is called to covered active duty) and has a qualifying exigency; or if an eligible employee needs to care for a covered service member who has a serious injury or illness (as defined in the Regs) and the employee is the spouse, child, parent or “next of kin” of the covered service member.

Simple.  And a couple more things to remember:  You have to apply these rights equally, for example, both fathers and mothers get time off to care for the birth of a child.

(b) Equal application. The right to take leave under FMLA applies equally to male and female employees. A father, as well as a mother, can take family leave for the birth, placement for adoption, or foster care of a child.

29 CFR §825.112(b).

Also, if an employee is not actively employed, say they are laid off, they are not eligible for leave until they are recalled.  But the minute they are recalled, they are entitled to FMLA if they otherwise are eligible and if the reason for the leave is a qualifying reason.

(c) Active employee. In situations where the employer/employee relationship has been interrupted, such as an employee who has been on layoff, the employee must be recalled or otherwise be re-employed before being eligible for FMLA leave. Under such circumstances, an eligible employee is immediately entitled to further FMLA leave for a qualifying reason.

29 CFR §825.112(c).

Next Page »