True or False: I cannot be disciplined any time I visit a healthcare provider?

Today’s post is all about the Family Medical Leave Act (FMLA) and trying to decide when a person qualifies for coverage.  As you may know from some of my previous coverage, the FMLA provides up to 12 weeks of unpaid leave to deal with your own serious health condition or the serious health condition of a family member (there are also some other issues covered).  If an individual takes FMLA protected leave they cannot be disciplined or terminated for that time off.  Therefore, it is crucial to understand when leave is covered.  Unfortunately, a recent case from Arkansas shows that if someone takes leave that is not covered, they can lose their job.  See Johnson v. Wheeling Mach. Prods., 779 F.3d 514 (8th Cir. Ark. 2015).  Hit the jump for all the details and the answer to the True/False question…

The question that titled this post revolves around the idea of a “serious health condition.”  Obviously, most people only seek medical attention if they are very ill but does that mean that anytime someone visits a healthcare professional they have a serious health condition?  According to the rules that control the Family Medical Leave Act (FMLA), a serious health condition is an injury, illness, or impairment that requires either inpatient care or continuing treatment by a health care provider.  Inpatient care is usually pretty straightforward since hospitals only admit individuals with severe illnesses or injuries.  The complication arrives in considering what qualifies as “continuing treatment by a health care provider.”

The rules give two different ways that a person can meet the continuing treatment requirement.  First, “continuing treatment” includes when an individual visits their healthcare provider on two or more occasions within 30 days of the first day they missed work.  This is even true if the individual visits two different healthcare providers in that time period so long as the visits necessary and related to the same injury or illness, such as when an individual is referred to a specialist.  The second definition of “continuing treatment” is when an individual visits their healthcare provider at least once and is given a regimen of continuing treatment under the supervision of a healthcare provider.

With this information at hand, let’s return to the title of this post and answer the question: True or False: I cannot be disciplined any time I visit a healthcare provider?  The answer is FALSE.  Depending on the circumstances a person can be disciplined or even fired for missing work, even if they do it to visit their healthcare provider, if they do not meet the definition of a “serious health condition.”  The case mentioned above provides a sad example of just such a situation.

In Johnson, an employee was suffering from blurred vision, a stiff neck, back pain, and a headache.  He notified his supervisor of his situation and then left to seek medical treatment.  The employee went to a “health care clinic” where he was diagnosed with high blood pressure, given a prescription for medication, and then told to follow up with his regular doctor at some point in the future.  The employee was also given a note to provide to his employer allowing him to stay out for two more days but when he did so the employer refused to accept it and eventually terminated the employee.  Importantly, when the individual did follow-up with his regular doctor, his blood pressure was normal, he was removed from the medication and instead told to exercise more.  The employee then sued alleging that his employer had violated his FMLA rights.

The trial court dismissed the employee’s claim and, on appeal, the appellate court upheld that dismissal.  First, the court held that the employee could not meet the “two visits” definition of “continuing treatment” because he could not prove that his visit to his regular doctor was within 30 days of his first absence.  Additionally, because the initial direction to follow up with his regular doctor did not list a specific deadline, the court found that even if the second visit had been within 30 days it would not have been “necessary.”  Turning then to the “regime of continuing treatment” definition the court relied heavily on the fact that the treatment must be “under the supervision” of a healthcare provider.  The court held that he was not “under the supervision” of a provider because neither of the healthcare providers he visited were expected to monitor or control a course of treatment. His initial visit with the clinic had no planned or expected followup and when he visited his regular doctor he was removed from the medication and told to exercise.  Therefore, the individual could not meet either definition of “continuing treatment” and his dismissal was allowed to stand.

The Johnson decision is a rather unique fact pattern but it ended in a tough defeat for the employee.  The court here may be showing some skepticism of the large number of “urgent care” clinics or other less formal health care clinics.  While these clinics can provide quick and affordable medical treatment, this court seems to think that they may be less rigorous in determining situations where an individual should miss work.  Therefore, if at all possible, if you are sick or injured you should attempt to see your usual healthcare provider.  If that is not possible, be sure that provider you do see either requests that you follow up with them within 30 days or directs you to follow up with your usual doctor within 30 days.  Then, make sure that you actually followup, even if only by phone.

If you are a Missouri NEA member and you are dealing with a health issue that may cause you to miss work, let your UniServ Director know.  They can help answer questions and provide guidance on the best way to address your health issue while also protecting your job.

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