Eighth Circuit: Worker's Blood Pressure was not FMLA-Qualifying Condition Absent Multiple Visits or Supervised Treatment

Kendrick Johnson was at work, and he had a headache so bad he felt like his head was going “to explode.” So he left his shift and went to a walk-in clinic. There, he received a prescription for blood pressure medication and a note stating that he was to remain off work for three days. Six days later, he was out of a job. Johnson sued his employer under the Family and Medical Leave Act (FMLA), alleging that he was denied leave to which he was entitled, which raised the obvious issue of whether he even had a “serious medical condition” under the law. The Eighth Circuit Court of Appeals answered that question last week, providing essential guidance for employers. 

The Department of Labor’s regulations implementing the FMLA define a “serious health condition” as a three-day period of incapacity plus either (i) two or more treatments by a health provider within 30 days or (ii) at least one treatment by a health care physician that results in a supervised treatment regimen, including anything from medication to physical therapy. The facts of Johnson’s case do not fit neatly into either of these categories. 

On the day Johnson left work, he visited with a physician assistant (PA) at the walk-in clinic; the PA prescribed medication, gave him a three-day work excuse, and instructed him to follow up with his regular physician. The work excuse had a blank space for the name, and the PA asked Johnson to write in his own name. Johnson returned to work with the excuse, but the employer immediately found it suspicious (Johnson having written in his own name), and asked him to obtain a new note. The following day, he returned with a new note from the clinic, but this one had been signed by a paramedic rather than the PA. The employer rejected the second note as well, placed Johnson and leave, and subsequently terminated him for allegedly falsifying a work excuse.

Thus, in the subsequent lawsuit, Johnson v. Wheeling Machine Products, No. 13-3786 (Feb. 20, 2015), the initial question before the Eighth Circuit was simple: did Johnson have a serious medical condition under the FMLA? He had a period of incapacity and had visited once with a health care provider, so he was at least part of the way there. But did he also either (i) see a health care provider for a second time within 30 days or (ii) receive a supervised treatment regimen? On the first issue, the Eighth Circuit took note of that fact Johnson eventually saw his regular physician about his blood pressure, but reasoned that this was not good enough; he could not provide the exact date of his second visit, and “[v]ague assertions about a follow-up appointment without specificity as to its timing are not sufficiently probative.” The second issue turned on whether the medication that the PA prescribed for Johnson on the day that he left work was a “supervised treatment regimen.” The Eighth Circuit focused on the word “supervised,” finding that there was nothing supervised or directed about the prescribed medication at all; instead, the physician assistant had “simply prescribed Johnson medication and sent him on his way.” Thus, the Eighth Circuit concluded, Johnson did not have a serious medical condition and, whatever the rightness or wrongness of his termination, was not protected by the FMLA.

Employers take note: just because an employee is ill and visits the doctor does not mean that he or she is entitled to FMLA coverage.  As the Eighth Circuit points out, the more particular requirements included in the regulations – which torpedoed Johnson’s case here – were put there for a reason: “[i]f a person’s health condition is indeed ‘serious’, it follows that the patient’s regimen of continuing treatment would involve either supervision – for example, a phone call with the health care provider to communicate updates on the patient’s condition and progress – or a follow-up appointment soon after the first.” Employers should not hesitate to inquire further into an employee’s medical condition before approving FMLA coverage to ensure that these requirements are met.