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FMLA didn’t protect employee discharged from hospital on same calendar day he was admitted

By Brandi O. Brown, J.D.

Interpreting the Department of Labor’s FMLA regulations, the Third Circuit ruled that an employee who was discharged from the hospital more than 14 hours after he was admitted, but on the same calendar day, was not entitled to FMLA protection under the regulation covering “inpatient care.” The employee was admitted shortly after midnight and was not released until the following evening; he was fired for walking off the job. Concluding that the employee’s hospital stay did not constitute the “overnight stay” necessary to qualify as “inpatient care,” the appeals court affirmed summary judgment for the employer. Judge Fuentes dissented (Bonkowski v. Oberg Industries, Inc., May 22, 2015, Cowen, R.).

The employee suffered from a heart condition and diabetes, among other health problems. During a meeting with supervisors to discuss his suspension for sleeping on the job, he began experiencing chest pain, shortness of breath, and dizziness. His supervisors gave him permission to leave and he returned home. After trying for several hours to get his breathing and heart rate under control, the employee’s spouse took him to the hospital. They departed at 11 p.m. and arrived at the hospital just before midnight. He was admitted shortly after midnight and remained in the hospital, undergoing many tests, and was almost slated for heart surgery. However, after no complications were found, he was released later that evening and told to follow up with his physicians for more tests. His doctor’s note stated that he had been hospitalized and was excused from work. Nonetheless, he was fired the next day for walking off the job. He filed suit, alleging FMLA interference and retaliation.

Sunset to sunrise. The district court granted the employer’s motion for summary judgment, concluding that no reasonable jury could find that his was an FMLA-qualifying absence and also that he did not have a serious health condition requiring “inpatient care in a hospital.” The FMLA regulation defines “inpatient care” as “an overnight stay in a hospital, hospice, or residential medical facility, including any period of incapacity as defined in 29 C.F.R. Sec. 825.113(b), or any subsequent treatment in connection with such inpatient care.” To constitute an “overnight stay,” the employee had to stay at the hospital from “sunset on one day to sunrise the next day,” the district court concluded, finding he did not satisfy that requirement. The Third Circuit affirmed, although with different reasoning.

Regulation definitions and requirements. Tracing the DOL regulations in question through their “rather lengthy and complicated history,” the appeals court pointed out that the regulatory scheme in effect in 2011 was organized somewhat differently than the 2013 version relied upon by the court below, although they were essentially identical. Under the definition of “serious health condition,” an employee had to show either that he received inpatient care or continuing treatment for an illness, injury, impairment, or condition. Under 29 C.F.R. Sec. 825.114, “inpatient care” required “an overnight stay in a hospital, hospice, or residential medical care facility,” with certain inclusions for “incapacity” or “subsequent treatment.” The DOL referred to the meaning of inpatient care as being more obvious than the meaning of the other prong, i.e., “continuing care.” Thus, although the DOL indicated that the terms “inpatient care” clearly referred to “an overnight stay,” it never specified what constituted “an overnight stay.”

Lower court’s approach overly narrow. Several approaches to the language were possible, the appeals court explained, including the district court’s “sunset-sunrise” approach, the employee’s suggested “totality of the circumstances” approach, and the employer’s “calendar day” approach. In the end, the court embraced a modified version of the third approach.

The district court’s approach was “overly narrow,” the appeals court concluded, because it was “premised on such extraneous factors as the time of year and the geographic location,” which could vary widely and create highly inconsistent results depending on the time of year and location in question. In some locations it would make absolutely no sense, the appeals court explained, citing the 20 hour days experienced in Fairbanks, Alaska in December. Therefore, it would produce “odd” or “absurd” results, which should be avoided in construing statutory language.

Employee’s is flawed. Likewise, the employee’s interpretation was “fundamentally flawed” because it attempted to turn a question of law into a question of fact. Although noting that it was “conceivable” that a court could interpret a statutory or regulatory provision as establishing a “multi-factor standard” that could be evaluated by a fact finder, the appeals court concluded that a “totality of the circumstances” approach would create too much uncertainty for both employers and employees. By that token, the appeals court explained, the district court’s approach was preferable, even though it ultimately disagreed with it.

Third approach is best. Having considered those approaches, the appeals court, like Goldilocks, concluded that the third one was best. To constitute an “overnight” stay, the stay had to be “for a substantial period of time from one calendar day to the next calendar day as measured by the individual’s time of admission and time of discharge.” The employee’s stay did not satisfy this test, the appeals court concluded. Although the employee testified that he was wheeled in before midnight, his arrival was not the starting point for consideration. Instead, following the Second Circuit’s logic in Estate of Landers v. Leavitt, a Medicare benefits case, the appeals court concluded that the time spent at the hospital prior to admission did not count. While different statutes and federal agencies were involved, the appeals court felt that it was appropriate to follow the reasoning of the Second Circuit, which was premised on express agency policy. Satisfied that it had settled upon a “bright-line” criterion for its interpretation, the court also concluded that its interpretation was “consistent with the purpose of the FMLA as well as the DOL’s own regulatory scheme.”

Other recourse. The court also noted that this did not leave a plaintiff without recourse; if he could not meet the overnight stay prong, he may still be able to establish coverage based on the “continuing treatment” prong. The court’s “significant modification,” however, from the employer’s articulation of the test was the “substantial period of time” requirement. Thus, to satisfy the court’s test, the individual has to stay “for a substantial period of time in the hospital, hospice, or residential medical facility (as measured by his or her time of admission and time of discharge).” Although not deciding the issue, the court noted that “a minimum of eight hours would seem to be an appropriate period of time.” That did not matter in this case, however, because it was uncontested that the employee was “formally admitted and discharged” on the same calendar day.

Dissent by Judge Fuentes. Concluding that the majority’s approach was just “as inequitable and unworkable” as the district court’s approach, Judge Fuentes argued that the totality of circumstances approach was highly preferable and more in line with the remedial purpose of the FMLA. The majority’s approach was inequitable, according to the dissent, because it would provide protection to an employee who arrived at 11 p.m. and was released only eight hours later better than an employee who arrived just one hour later and stayed the entire day.

It was also inequitable in light of the types of differences that also marred the sunset and sunrise approach. The ebb and flow of patients differs between rural and urban hospitals, as does the number of staff equipped to handle the admitted patients. There are also seasonal fluctuations to take into account, as well as variations in service time that occur throughout the day and week. The totality of the circumstances approach would not run into the question-of-law-versus-question-of-fact issue raised by the majority, Fuentes added, unless there were material questions of fact that were in dispute. The dissent did not anticipate that there would be many cases with material issues of fact related to days, dates, and times. Where the facts were undisputed, Fuentes added, it would not be difficult for the court to determine whether the employee had had an overnight stay.