FMLA Leave and Meaning of Treatment

By Rudman Winchell Attorney

By Rudman Winchell Attorney Anne-Marie Storey

An interesting question arose in a recent case as to what constitutes treatment under the federal FMLA.  In that case, an employee was assessed penalty points for absences that were non-FMLA related to the extent that he incurred sufficient points to be terminated.  The employee disputed some of these points, specifically, those that were issued to him for a half-day absence during which he went to his doctor’s office.   The dispute over whether the points resulting from that visit were excused as FMLA time became the focus of the case.

The employer argued that the visit to the doctor’s office was not FMLA qualifying because all the employee did while he was there was to ensure that a referral was in order and to pick up a prescription note; it argued that neither action constitutes “treatment” under the FMLA.   The district court agreed.  On appeal, the Seventh Circuit provided an informative summary of the elements necessary to show that an employee received “treatment” as defined by the Act and ultimately concluded that neither action – the referral or the prescription- constitutes treatment sufficient for FMLA coverage.   The Court did acknowledge that if the prescription note were obtained in connection with an actual examination the outcome might be different. 

This case illustrates that there are many nuances to the FMLA that may factor into whether leave time is covered by the Act and the importance of keeping precise records as to which periods of leave are designated as FMLA and which are not.

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