Ear infection may be FMLA-qualifying serious health condition

From Family and Medical Leave Handbook, © Thompson Publishing Group, Inc.

An employee who was fired after missing work because her three-year-old son suffered from the sudden onset of an ear infection may be covered by the Family and Medical Leave Act (FMLA), the 8th U.S. Circuit Court of Appeals ruled recently. The appellate court's ruling reversed a lower court's decision that the ear infection was not a serious health condition as defined by the FMLA.

Juanita Caldwell, a single mother, worked for three years in Holland of Texas's Texarkana, Ark.-based Kentucky Fried Chicken restaurants, where she had an excellent employment record. On June 7, 1997, her son awoke with a high fever, pain in his ears and congestion. Caldwell contacted her employer, stating that she would not be able to work that day because of her son's illness, and was given permission to miss her shift. She took her son to an emergency clinic where the physician diagnosed him with an acute ear infection and prescribed a 10-day course of antibiotics and a decongestant. The doctor also informed Caldwell that her son probably required surgery to avoid permanent hearing loss.

During a second visit to the doctor on July 1, Caldwell's son received a second 10-day prescription for antibiotics to treat the ear infection. On July 17, 1997, the child underwent surgery to remove his adenoids and tonsils and to place tubes in his ears. After surgery, the child received another course of antibiotics and orders to stay in bed for a week.

When Caldwell returned to work for her next regular shift on June 9 after the initial clinic visit, the restaurant's manager fired her without discussing her absence. Caldwell sued Holland of Texas, arguing that her termination violated the FMLA. The U.S. District Court for Western Arkansas dismissed the case, however, stating that although the federal leave law protects employees when their immediate family members have a "serious health condition," the child's ear infection did not qualify as such. Caldwell appealed.

According to the 8th Circuit, the FMLA allows eligible employees to take as much as 12 weeks of unpaid leave in a 12-month period to care for immediate family members who suffer from a serious health condition (§102(a)(1)(C). For Caldwell's case to survive, the court said, she must show that her son suffered from a serious health condition and that her absence was caused by the child's illness.

A serious health condition is an "illness, injury, impairment, or physical or mental condition" that requires "inpatient care" or "continuing treatment" by a health care provider (29 C.F.R. §825.114(a). Although Caldwell's son plainly did not receive inpatient care, the appellate court stated that "the pertinent issue is whether [the child] received continuing treatment." According to FMLA regulations, a person undergoes continuing treatment if he or she experiences "a period of incapacity … of more than three consecutive calendar days" and then receives subsequent treatment or experiences further incapacity relating to the same condition (29 C.F.R. §825.114(a)(2)(i)). Such subsequent treatment must include either "treatment two or more times by a health care provider" or "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 C.F.R. §825.114(a)(2)(i)(A-B)).

Based on these regulations, the appellate court held that for Caldwell to be protected by the FMLA, she must be able to prove that, first, her son suffered a period of incapacity lasting more than three consecutive days, and second, that the child subsequently received continuing, supervised treatment for the same condition.

The period of incapacity
"In assessing the first prong of Caldwell's case, we note at the outset that the question of what constitutes incapacity of a three-year-old raises an issue not directly addressed by the regulations," the appellate court said. According to the regulations, an incapacity includes an individual's "inability to work, attend school or perform regular daily activities due to the serious health condition, treatment thereof, or recovery therefrom" (29 C.F.R. §825.114(a)(2)(i)). But when this standard is applied to a three-year-old child who does not attend work or school, it "is an insufficient guide," according to the court.

Consequently, the court held that it must determine whether the child's illness affected his normal activity, considering whether he participated in his daily routines, was particularly difficult to care for, and would have been allowed to attend daycare with his illness. Caldwell argued that her son required constant care for more than three consecutive days, stating that "he remained inside the house and was kept in bed as much as possible. He did not participate in any of his normal activities." In addition, the medical records showed that the child's ear infection was "a continuing, persistent condition that could only be treated by surgery."

Based on this evidence, the court found that Caldwell's son's incapacity "can be measured over the entire time during which he was suffering from this illness and being treated for it. … This entire period, from June 7 – July 17, 1997, may constitute [the child's] period of incapacity if his illness and these various treatments disrupted his basic daily routines, and if, as the record suggests, his ongoing treatment was not successfully alleviating his condition of disability."

In fact, the court stated that the 10-day period beginning June 7, 1997, could constitute the child's period of incapacity, meeting the FMLA's requirements for coverage. Caldwell testified that her son required constant care and administration of medications during "this entire time." Further, the physician reported that on July 1, the child's condition had not greatly improved. "All of this evidence indicates a continuing period of incapacity which may have lasted for ten days," the court held.

Regardless of whether Caldwell's son sustained incapacity as defined by the FMLA before surgery, he clearly was incapacitated for more than three days after he underwent the tonsillectomy and adenoidectomy, according to the appellate court. Although the child's condition did not require immediate surgery, the doctors determined that the condition could be cured only by surgical means after the first round of medication failed to have a sufficient effect.

"Both the First and the Seventh Circuits have recognized that medical diseases do not afflict people in methodical and predictable ways: certain serious diseases can elude diagnosis, change in severity, and have cumulative effects on the body over time," the court stated, citing Hodgens v. General Dynamics Corp., 114 F.3d 151 (1st Cir. 1998), and Price v. City of Fort Wayne, 117 F.3d 1022 (7th Cir. 1997). In fact, the Hodgens court stated that "it would seem that Congress intended to include visits to a doctor when the employee has symptoms that are eventually diagnosed as constituting a serious health condition, even if, at the time of the initial medical appointments, the illness has not yet been diagnosed nor its degree of seriousness determined."

Consequently, the appellate court in the immediate case found that it must examine the disease's effects on the child's body over the entire period of his illness. "Upon examining the seriousness of [the child's] ear infection, which required surgery to prevent deafness, we hold that there is at least a question of fact as to whether [his] condition was ‘serious' under the regulations," the court held.

Subsequent treatment
Turning next to the question of whether Caldwell's son received subsequent treatment as defined by the FMLA, the 8th Circuit stated that she had clearly shown that the child underwent two 10-day antibiotic treatments, surgery and two postoperative medical visits all related to his ear infection. Therefore, the court held that the employee had presented sufficient evidence of subsequent treatment.

"An employer does not avoid liability by discharging an employee who takes leave in order to seek treatment for a condition that is later held to be covered by the FMLA. The employer who precipitously fires an employee, when the latter claims the benefits of leave under FMLA, bears the risk that the health condition in question later [could develop] into a serious health condition," according to the court. Although the evidence presented did not clearly indicate the nature of the child's incapacity, it did show that he was incapacitated for more that three consecutive days between June 7 and July 17, 1997, the court held. Consequently, it reversed the district court's ruling in Holland of Texas's favor and remanded the case for further proceedings. (Caldwell v. Holland of Texas, 8th Cir., No. 99-2382, March 30, 2000)

This article is © Thompson Publishing Group. Visit Thompson's HRHub.com Online Storefront.