“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the nineteenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.
Not carefully analyzing whether an employee is eligible for FMLA leave due to inpatient care
Employers commonly deal with FMLA leaves under the “continuing treatment” prong of the definition of a serious health condition, which requires an employee to be incapacitated for 3 or more days. However, another prong of the serious health condition definition is “inpatient care.” The FMLA regulations define “inpatient care” as an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with the inpatient care. 29 CFR § 825.114. Employers should carefully analyze whether this prong of the definition is met to properly determine whether an employee’s time is protected under the FMLA. Courts have had some unique interpretations of this definition.
In Bonkowski v. Oberg Indus., 787 F.3d 190 (3d Cir. 2015), the Third Circuit Court of Appeals determined that an overnight stay under the inpatient care definition of the FMLA is met when an individual stays for a “substantial period” of time in the facility. The employee-plaintiff arrived at the hospital shortly before midnight on November 14, 2011. He was not admitted to the hospital until shortly after midnight on November 15, 2011. He was later discharged the evening of November 15. The employer did not consider this to be an overnight stay in a hospital and terminated employment. The court adopted a calendar day approach and stated that an “overnight stay” means a stay in the facility for a “substantial period” of time. This means from one calendar day to the next calendar day, measured by the individual’s time of admission and time of discharge. The court also stated that a minimum of eight hours seems to be an appropriate period of time (although it explicitly stated that it did not decide that issue and will leave the issue of requisite length of time for another day). Therefore, the employee’s time in the hospital was not protected under the FMLA.
In Isley v. Aker Phila. Shipyard, Inc., 275 F. Supp. 3d 620 (E.D.Pa. 2017), the employee began experiencing chest pain and shortness of breath at work before his work shift. The employee, who worked night shift, went to the emergency room around 9:00 p.m. on February 19, 2015. The employee remained at the hospital for approximately 3½ hours, until 12:30 a.m. on February 20, 2015. The employee was later fired for unexcused absenteeism that included the time missed from work on February 19. The employee claimed that the February 19 absence was protected under the FMLA. While the court recognized that the time in the hospital went from one calendar day to the next, it stated that the employee’s visit to the hospital was not inpatient care based on the suggestion by the Third Circuit in the Bonkowski v. Oberg Industries case of a minimum of an eight hour stay in the hospital. Because the employee’s time in the hospital was only 3½ hours, the court found that the time was not protected under the FMLA.
When employees request FMLA leave due to inpatient care, employers should carefully analyze the documentation in order to properly determine whether the definition is met. While many courts have not yet opined on the interpretation of “inpatient care,” an employer should check the case law in the applicable jurisdiction to determine whether there are any specific interpretations of the definition.