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Ask The Lawyer By: Daniel A. Gwinn, Esq.

| July 31, 2017

IS AN OVERNIGHT STAY IN HOSPITAL A ‘SERIOUS HEALTH CONDITION’ UNDER FMLA?

QUESTION: I work the third shift at a factory (8 p.m. to 5 a.m.). Around 1:30 a.m., I started feeling really sick (my heart was pounding so hard it hurt). I left work after telling a co-worker I needed to go to the hospital. I was admitted to the hospital at 3 a.m., had a bunch of tests, and was sent home at 7:00 p.m. that evening. They told me I had a mild case of “stable angina.” I was told to stay home and rest for two days before going back to work, and to follow-up later with a cardiologist. I got a note from the doctor and called in to work, telling them I wanted to use FMLA time off. When I went back to work, my supervisor told me I was being fired for walking off the job and I wasn’t eligible for FMLA because my condition wasn’t serious. How serious does it have to be? I was in the hospital!!

ANSWER:

The Family and Medical Leave Act allows workers to take up to 12 weeks of unpaid leave in a 12-month period for the birth of a child, to take care of an immediate family member, or for because the employee can’t work due to a “serious health condition.” To be eligible, an employee must have worked on the job for 12 months, and work at a location that employs at least 50 people, among other requirements. A serious health condition is defined as “an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital … or (B) continuing care by a health care provider.”

Seems pretty straightforward, right? But, what is “inpatient care” and what does it mean to receive “continuing care by a health care provider”?

The Code of Federal Regulations (CFR) defines “inpatient care” as “an overnight stay in a hospital ….” But courts don’t agree on what “overnight” means. Is it from at least sunset one day to sunrise the next? Or is it, as one court recently held, an extended period from one calendar day to the next calendar day, based on a patient’s time of admission and discharge?

The CFR states that “continuing treatment” requires “a period of incapacity of more than three consecutive, full calendar days” and subsequent treatment “relating to the same condition” that also involves treatment two or more times within 30 days of the first day of incapacity, or treatment by a healthcare provider on at least one occasion, which results in a regimen of continuing treatment (for example, prescription medication) under the supervision of the health care provider. But the requirement of three days of incapacity may not apply to continuing treatments for chronic serious health conditions, such as asthma, diabetes, or epilepsy, which require periodic visits for treatment.

Did the follow-up care you received from the cardiologist amount to “continuing treatment”? Is your angina a chronic serious health condition?

Generally, heart attacks, cancer, strokes, severe respiratory conditions, spinal injuries, and injuries caused by serious accidents are regarded as serious conditions. To determine whether your angina was a “serious health condition” that entitled you to FMLA protection is largely a legal question, based on the time you spent in the hospital, the nature of your illness, the kind of care you required after your discharge, and the duration of your illness. Was it ongoing? What was its frequency?

To evaluate whether your condition was serious under the FMLA, and therefore whether you were entitled to (and wrongly denied) FMLA, you should consult with an experienced attorney.

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN TAURIAINEN PLLC. To view previous columns, please visit our website.

GWINN TAURIAINEN PLLC, is a Troy based law firm representing clients from Warren, Sterling Heights, Ferndale, Royal Oak, Oak Park, Oakland and Wayne Counties and all of Southeast Michigan

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
http://www.gwinntauriainenlaw.com/

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