Employee Benefits-Second Circuit Rules That Foot Surgery And Post-Operative Care Could Be A Serious Health Condition For Purposes Of Establishing Entitlement To Leave Under The FMLA

In Pollard v. The New York Methodist Hospital, Docket No. 15-3231 (2nd Cir. 2017), the plaintiff, Jacintha Pollard (“Pollard”), who was dismissed from employment by the defendant, The New York Methodist Hospital (“Hospital”), for taking unauthorized leave, appeals from the order of the district court granting summary judgment to the defendant dismissing plaintiff’s suit brought under the FMLA.  In this suit, Pollard had alleged that the Hospital terminated her illegally for taking medical leave to which she was entitled under the FMLA.  The Second Circuit Court of Appeals (the “Court”) held that the district court erred in concluding that plaintiff could not, as a matter of law, establish a “serious health condition,” so as to qualify for medical leave.  Accordingly, the Court vacated and remanded the district court’s decision.

In this case, Pollard had developed a growth on her left foot.  The growth became increasingly painful and, to a contested degree, limited her ability to perform her job for the Hospital.  Pollard’s podiatrist concluded that the growth was a benign soft tissue mass.  The podiatrist and Pollard agreed to remove the mass by surgery to alleviate the pain.  The podiatrist certified on an FMLA medical form that the growth was a serious health condition that required surgery.  On March 28, 2013, the podiatrist performed the surgery.  Because of Pollard’s failure to report to work that day, the Hospital terminated her employment by letter dated April 1, 2013.  This suit followed.

In reaching its decision to overturn the district court’s decision, the Court noted that the FMLA provides that an eligible employee is entitled to a total of 12 workweeks of leave during any 12-month period because of a serious health condition.  The FMLA defines “serious health condition” as including an illness, injury, impairment, or physical or mental condition that involves continuing treatment by a health care provider. 29 U.S.C. § 2611(11).

Further, noted the Court, the Department of Labor has promulgated regulations setting forth categories of serious health conditions requiring continuing treatment. These regulations, at 29 C.F.R. § 825.115(e)(2), provide:

(e) Conditions requiring multiple treatments. Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider…for:…

(2) A condition that would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), or kidney disease (dialysis).

“Treatment” is defined, in these regulations, as including “examinations to determine if a serious health condition exists and evaluations of the condition.” 29 C.F.R. § 825.113(c).

The Court determined that, under the facts presented to it (including the surgery itself, follow-up visits to the doctor, post-operative care, and the likelihood of incapacity if the surgery was not performed), the Pollard met the requirements for receiving continuing treatment, as the statute requires and as defined in the regulations, and thus had a serious health condition which entitled her to leave under the FMLA.