FMLA: FMLA Protection for Employee Absent from Work 4 Days with Tooth Abscess

The Family and Medical Leave Act (FMLA) protects employees who are absent from work due to a serious medical condition. Most often FMLA job reinstatement rights are invoked when there is need for a leave of absence from work for 12 weeks of less due to a medical surgery, sudden illness or long-term health problem which requires immediate treatment. In certain circumstances an employee’s right to reinstatement under the FMLA may be protected where there is a relatively short absence from work. In Keiderling v. RFM Services, Inc., 2014 U.S. Dist. LEXIS 9734 (M. D. Pa. January 27, 2014) (Mariani, J.), the Plaintiff employee worked as a customer service representative. The employee had a tooth abscess which caused a need to leave work early on one day; thereafter the employee missed three consecutive days of work. On each day the employee was absent he called out of work by leaving voicemail messages, calling out sick for that particular day and not for more than one day at a time. During the four-day absence the employee’s medical treatment for the tooth included: contacting his dentist who called in a prescription drug for him; seeing his family doctor, and being given another prescription drug; going to the emergency room as an outpatient and receiving prescription drugs; and seeing his dentist and having his tooth drained. The employee provided two written medical excuses; but not for the day he left early and the first full day missed. While the employee was absent from work his supervisors made comments indicating an intent to terminate the employee such as, “We need to find a reliable, responsible person” and “I told you we should get rid of” him a while ago “but sometimes the devil you know is better than the devil you don’t know. I am working on it. I’ll take care of it. Thanks for your patience.” One day after the employee returned to work he was terminated for “excessive absences.”

Under the FMLA, an eligible employee is entitled to take leave from work for a “serious health condition,” which is defined as “an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, or (B) continuing treatment by a health care provider.” Continuing treatment by a health care provider is defined as “period of incapacity of more than three consecutive, full calendar days . . . that also involves . . . [t]reatment 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.” Incapacity means the “inability to work . . . or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom.” Id. § 825.113(b). An employee may satisfy the burden of proving three days of incapacitation through a combination of expert medical and lay testimony.

Once an employee invokes his FMLA rights an employer may not interfere with, restrain, or deny the exercise of, or attempt to exercise FMLA rights. An employee need not show that he was treated differently than others. Further, the employer cannot justify its actions by establishing a legitimate business purpose for its decision. An FMLA interference action is not about discrimination, it is only about whether the employer-provided the employee with the entitlements guaranteed by the FMLA. Further, firing an employee for a valid request for FMLA leave may constitute interference with the employee’s FMLA rights as well as retaliation against the employee. While to invoke FMLA rights an employee must provide adequate notice of a need for FMLA leave, a formal written request may not be required and an employee need not expressly assert rights under the FMLA or even mention the FMLA.

In Keiderling, although the Plaintiff employee did not have medical excuses in the form of doctor’s notes for the first two days he was out of work, the employee advised the employer that he had pain from his “bad tooth ache abscess” and went to the dentist. The Court found that although FMLA regulations state “[t]reatment does not include routine physical examinations, eye examinations, or dental examinations,” a material issue of fact exists as to whether the employee suffered from a ‘serious health condition.’ Applying the FMLA regulations in Keiderling, the court found that because the employee provided the employer with two medical excuses upon his return, the combination of extended treatment coupled with medical excuses could be sufficient to put the employer on notice of potential FMLA-qualifying leave because in situations where the employer does not have sufficient information about the reason for an employee’s use of leave, the employer should inquire further of the employee to ascertain whether leave is potentially FMLA-qualifying. Thus, the Court found that the employee could establish his invocation of FMLA rights and the employer’s actions in terminating his employment would have interfered with those rights.

The court also found that the employee could prevail on a FMLA retaliation theory where once an employee invokes his FMLA rights, an employer may not discharge or in any other manner discriminate against any individual for opposing any practice made unlawful. To prevail on a retaliation claim under the FMLA, the employee must prove that (1) the employee invoked a right to FMLA-qualifying leave, (2) suffered an adverse employment decision, and (3) the adverse action was causally related to invocation of rights. FMLA retaliation claims are based on circumstantial evidence which are assessed under the McDonnell Douglas burden-shifting framework where the employee has the initial burden of establishing a prima facie case. To do so, an employee must point to evidence in the record sufficient to create a genuine factual dispute about each of the three elements of the retaliation claim: (a) invocation of an FMLA right, (b) termination, and (c) causation. Then the burden of production shifts to the employer articulate some legitimate, nondiscriminatory reason for its decision. Then the employe must point to some evidence, direct or circumstantial, from which a factfinder could reasonably disbelieve the articulated legitimate reasons.

When the temporal proximity (i.e. timing) between the protected activity and adverse action is unduly suggestive, this alone can be sufficient to create an inference of causality and defeat summary judgment. Since the employee in Keiderling was fired the day after returning from a four consecutive day absence from work, the court found the timing sufficiently suggestive to create an inference of causation and defeat summary judgment, finding the Plaintiff met the burden of showing pretext, requiring a jury to determine the true reason for the employee’s termination.

For more information on the Family and Medical Leave Act (FMLA) and Abramson Employment Law see


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Filed under Employment Law, FMLA, Retaliation

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