Not all doctor visits constitute “medical treatment” for the purposes of the FMLA

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 Not all doctor visits constitute “medicaltreatment” for the purposes of the FMLAJones v. C & D Technologies, Inc., USCA, 7^th Circuit, Docket No.11-3400. 
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/ Copyright © 2012. All rightsreserved by Carl C. Bosland, Esq. Reproducedwith permission. Mr. Bosland is the author of A Federal Sector Guide to theFamily and Medical Leave Act & Related Litigation.
Jones had an approved FMLA-coveredserious health condition requiring periodic treatment by his physician. He asked for and was approved FMLA leave for an afternoon appointment toreceive medical treatment by one of his physicians.  Although he wasscheduled to work the morning, Jones did not show up to work.  WhetherJones timely called in his morning absence was in dispute.  Instead ofworking, Jones visited another of his physicians.  During the unscheduledmorning visit, Jones ensured that his physician forwarded his medicalrecords for his afternoon medical appointment.  As a result of a shortconversation in the lobby, Jones also secured a prescription refill notefrom his doctor during his impromptu morning visit.  Jones was neverexamined or evaluated during the morning visit with his doctor.  Becausehe missed working his morning shift, Jones was terminated pursuant to theCompany's attendance policy.

Jones sued alleging that his termination interfered with hisFMLA rights.  Specifically, Jones argued that he received FMLA-covered"medical treatment" during his morning doctor visit, as evidenced bythe prescription refill note.  The Company argued that Jones' morningvisit was not "medical treatment" within the meaning of theFMLA. 
An employee is entitled to FMLA leave if she suffers from a"serious health condition" that renders the employee unable toperform the functions of the employee's position.  29 USC2612(a)(1)(D).  Under the FMLA, an employee who must beabsent from work to receive medical treatment for a serious health condition isconsidered "unable to perform the functions of the employee'sposition."  29 CFR 825.123(a)(emphasis added).  The parties donot dispute that Jones had an FMLA-covered serious health condition. Instead, the case focused on whether Jones' impromptu morning visitwith his physician constituted "necessary medicaltreatment."          After initially noting that the statute does not define"treatment," the Court looked to the DOL regulatory definitions of"treatment" in sections 825.113(c) and 825.115 for guidanceon the meaning of "treatment" in 825.123(a).  The Court concludedthat 825.115 was not helpful in understanding the meaningof "treatment" in 825.123(a) because, while it refers to"continuing treatment," it fails to address the circumstanceswhere a person actually receives medical treatment that prevents themfrom performing the functions of their position. Similarly, while acknowledging the reference to a courseof prescription medication as evidence of a "regimen of continuingtreatment," the Court ultimately concluded that, while relevant todetermining the existence of an FMLA-covered serious health condition, itwas not helpful to determine whether an employee actually receives"treatment" that prevents him from performing his job. According to the Court:
Many chronic conditions require a course of prescriptionmedication, but the FMLA requires something more for an employee to becomeentitled to leave -- inability to perform her job functions.  A course ofprescription medication and an inability to perform a job are not mutuallyexclusive.
Relying on its previous decision in Darst v.Interstate Brands Corp., 512 F.3d 903, 911-12 (7th Cir. 2008), the Courtdetermined that treatment "includes examinations to determine if aserious health condition exists and evaluation ofthe condition," but not actions such as calling to make anappointment or scheduling substance-abuse rehabilitation."  Applyingthat standard, the Court concluded that Jones did not receive treatmentpreventing him from working that morning by visiting his doctor to ensurehis referral to another lab was in order.  The Court also found thatmerely picking up a prescription refill note did not, under thecircumstances, constitute FMLA-protected treatment.  The Courtobserved:
Although we can envision a scenario where obtaining aprescription note in connection with a physician's examination might constitutetreatment, this case does not approach that hypothetical.  Here, Dr. Lubaknever evaluated or examined Jones, and Jones even conceded in a deposition thathe was never "physically examined" that morning.  Jones arrivedat Dr. Lubak's clinic unannounced and appeared only to briefly speak with hisphysician in the office lobby. The entirety of Jones's interaction with Dr.Lubak consisted of the physician's acquiescence to refill a prescription. There is simply no evidence that Jones was examined, and therefore treated,that morning.
Mr.Bosland Comments:  The decision of the Seventh Circuit iswell reasoned.  To be covered by the FMLA, an absence toreceive "medical treatment" under 825.123(a) requires,for the Seventh Circuit, the visit be "necessary" and aphysical examination, which the Court equates with"treatment."  Jones' unscheduled, non-emergent morning doctorvisit was not medically required.  Moreover, checking to ensurethat medical paperwork was forwarded to a second doctor and securinga prescription refill after a brief lobby conversation with his physician, didnot impress the Court as rising to the level of an "examination" and,therefore, treatment for purposes of the protections of the FMLA.  It willbe interesting to see if other courts following the lead of the SeventhCircuit. 
The decision is posted on the Internet at: http://www.ca7.uscourts.gov/tmp/LV0CM205.pdf