No Serious Health Condition? No FMLA Protection, says Eighth Circuit

Darrell VanDeusen
Darrell VanDeusen

These days, it is unusual to see an appellate decision where an essential element of the claim is disputed.  For example, it’s the rare Title VII case where the protected status of the plaintiff is in question (“no, your honor, we do not agree that the plaintiff has a race…”) or in a ADA case – after enactment of the Americans with Disabilities Amendments Act – where the issue of whether the plaintiff has a disability is at issue.

Likewise with the Family and Medical Leave Act (FMLA).  After 25 years, the law covering what constitutes a “serious health condition” is pretty clear based on the DOL regulations and court decisions.   But that doesn’t stop some people from trying to shoehorn their circumstance into the law.  The Eighth Circuit addressed this very issue in Curtis v. Nucor Corp., 2018 U.S. App. LEXIS 5133 (8th Cir. March 1, 2018) (unpublished).

Steve Curtis was a port crane operator at Nucor. He injured his knee while hunting one weekend in October. Curtis was scheduled to work a four-day shift beginning on the following Tuesday, but told his supervisor that he was unable to work and did not come in for his shift. He first saw a doctor a week later, nine days after the injury and after missing his shift.

The doctor diagnosed “left knee pain” and prescribed him an anti-inflammatory.  The doctor told Curtis to return “if anything gets any worse.” After leaving his first doctor’s visit, Curtis drove to Nucor and delivered a note excusing himself from work through the end of the year. But the doctor’s note explained only that Curtis was “under my medical care.”  It did not address Curtis’s four-day absence or the need for more time off.

The doctor returned an FMLA certification form to Nucor stating that Curtis had “no use of left lower extremity” and that treatment would be provided “as needed.”  But Nucor personnel saw Curtis walking when he delivered the note and they decided to seek a second doctor’s opinion.   When Curtis refused to attend, Nucor denied his FMLA leave and terminated his employment due to his four-day unexcused absence.

Curtis sued alleging FMLA entitlement and discrimination (also known as interference and retaliation claims, but the Eight Circuit doesn’t like to use those terms.  See Pulczinksi v. Trinity Structural Towers, Inc., 691 F.3d 996, 1005-06 (8th Cir. 2012)).  The district court granted Nucor’s motion for summary judgment and Curtis appealed.

The Eighth Circuit affirmed, finding that Curtis could not show he was in fact entitled to FMLA leave because he did not show he suffered from “serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D).  DOL regulations provide that a serious health condition requires “continuing treatment by a health care provider as defined in § 825.115.”  See 29 C.F.R. § 825.113(a).

Section 825.115 provides the way to establish continuing treatment:  for an acute condition involving a period of incapacity of more than three consecutive days, continuing treatment includes either (1) treatment “two or more times, within 30 days of the first day of incapacity;” or (2) initial in-person treatment followed by “a regimen of continuing treatment under the supervision of the health care provider.”  In either case, the first in-person treatment visit “must take place within seven days of the first day of incapacity.” 29 C.F.R. § 825.115(a)(3).

Curtis, however, waited nine days and the court found that this sunk his claim. Also, since there was only one doctor’s visit with “as needed” for a return trip, Curtis’s injury did not qualify as having “continuing” treatment.

What’s the take away?   The FMLA works. Honest, it does.  Most of the time.  But just like employers have to follow the rules, employers should make their workers do so as well. Employees who try to game the system need to be held to the requirements of the law.  Such employer vigilance will stop FMLA abuse and ensure that those employees who legitimately need to use FMLA leave get to do so.


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