HR Alert: FMLA Refresher

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It’s been a long, hot summer. Time for a nice, cold . . . FMLA refresher!

Business owners, human resources professionals, and company managers – do you remember all the criteria that allow an employee to use FMLA leave? Let’s review.

The Family and Medical Leave Act ensures employees may acquire protected leave from work. To be “eligible,” an employee must meet a few criteria:

  1. They have worked for their employer for at least 12 months;
  2. They have worked at least 1,250 hours during those 12 months prior to their leave;
  3. Their workplace is located in an area where the employer has at least 50 employees within 75 miles.

Employers that must comply include private sector companies that employ 50 or more employees in 20 or more workweeks, as well as public agencies and local educational agencies, that is, school districts across New York State.

There are several permitted reasons an employee can take FMLA leave, including the birth or adoption of a child, care for a parent or spouse with a serious health condition, or, most obviously, when the employee has a serious health condition.

But what is a serious health condition? Any “illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider.”

Inpatient care is covered under the FMLA where the employee has an overnight stay in a medical facility. An obvious example: surgery with overnight stay for observation.

Continuing treatment is less straightforward. This can include chronic or long-term conditions or conditions that require multiple treatments. Good examples include a cancer diagnosis with ongoing chemotherapy and multiple sclerosis with intermittent infusions. It can also include – and this is discussed further below – incapacity plus treatment.

A recent decision in the Second Circuit – which is the federal appeals court over New York, Connecticut, and Vermont – tells us exactly what “incapacity plus treatment” means. In Arizmendi v. Rich Products Corporation, an employee filed a lawsuit against her employer for interference with her right to take leave and retaliation against her for attempting to take leave.

The plaintiff had developed COVID-19-like symptoms and was given a doctor’s note to stay out of work for three days. As the court clarified, FMLA defines a serious health condition as including “illness, injury, impairment, or physical or mental health condition that involves. . . continuing treatment by a health care provider.”  To show that they’ve received continuing treatment, an employee can show the incapacity lasted “more than three consecutive, full calendar days” – with the emphasis on more! Because the plaintiff was unable to show that she was sick for more than three days, her claims for interference failed. This was true even though the plaintiff had originally requested five days off of work. After the three days, she still “wasn’t feeling too well” BUT she was “able to work.”

At this point, you may also be wondering what treatment means. The FMLA construes the term broadly, and treatment includes telemedicine, exams to determine if a condition exists, and evaluations of a condition. All are considered “treatment.”

We hope this was a helpful refresher. Indeed, FMLA requests create complexities that can confuse even the most sophisticated business owner, manager, or HR professional. If you have any questions regarding the FMLA, feel free to contact The Coppola Firm at 716.839.9700 or


Lisa Coppola

Written by Lisa Coppola

Founder of The Coppola Firm

Lisa A. Coppola, Esq. understands the challenges her clients face, whether they’re starting a new business, taking their existing operations in a new direction, or facing a claim or threat.

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