Chronic conditions require treatment before FMLA leave

Ephriam was a bus driver with some attendance issues. He accumulated enough negative attendance points that he was fired. His final absence was for a migraine headache, though most of his earlier absences were not.

A couple of weeks after his latest call-off, his employer held a meeting in which Ephriam’s firing was recommended. After that meeting, Ephriam requested leave under the federal Family and Medical Leave Act (FMLA). He also went to a doctor to get a certification supporting his FMLA claim for migraines. Nonetheless, the employer soon held another meeting, where his firing was approved.

Ephriam sued, saying his migraines were an FMLA chronic serious health condition. In court, the employer argued that Ephriam did not have a serious health condition at the time he was fired.

In siding with the employer, the court said that the “operative time for determining whether a particular condition qualifies as a serious health condition is the time that leave is requested or taken.” Ephriam did not do that.

For chronic conditions to be FMLA serious health conditions, they must require visits at least twice a year for treatment by a health care provider. Ephriam did not show any proof of visiting a doctor for his migraines before he was fired, except for the visit to get the FMLA certification.

Ephriam went on to argue that the health care provider checked off a box on the certification indicating that “the patient [will] need to have treatment visits at least twice per year due to the condition[.]” But this applied to future treatment, not past treatment. Employees don’t have an FMLA-qualifying serious health condition if they wait to see a health care provider until after the relevant absences.

Rodriquez v. Southeastern Pennsylvania Transportation Authority, Third Circuit Court of Appeals, No. 23-3074, September 26, 2024.