On May 22, 2015, in Bonkowski v. Oberg Indus., Inc., 787 F.3d 190 (3d Cir. 2015), the Third Circuit announced a new bright line test for how employers should determine what constitutes a “serious health condition,” which triggers the protections of the Federal Family Medical Leave Act (“FMLA”). Understanding this new test and how it came about will be important for employers to try to predict when their employees are entitled to FMLA protections.
Under the FMLA an employee is protected for qualifying “serious health conditions,” defined in 29 U.S.C. § 2611(11)(A) as “an illness, injury, impairment, or physical condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility or (B) continuing treatment from a health care provider.” The focus of the Court’s decision in Bonkowski was interpreting what is or is not “inpatient care.”
Jeffery Bonkowski was an employee of Oberg Industries, Inc., who suffered from a preexisting heart condition and diabetes. On November 14, 2011, he met with two supervisors in order to discuss his recent suspension for allegedly sleeping on the job. During this meeting, Bonkowski began experiencing shortness of breath, dizziness, and chest pains. He was sent home and it was understood that they would continue their meeting the next day, when he felt better.
However, after arriving home, Bonkowski continued to experience shortness of breath, chest pains, and an increased heart rate. Bonkowski’s wife drove him to the hospital and he arrived shortly before midnight. He was admitted and designated “inpatient” shortly after midnight, where he remained until the early evening of November 15, 2011. The next day, Oberg’s human resources department notified Bonkowski that his employment was terminated because he had walked off the job on November 14, 2011.
Bonkowski filed suit alleging Oberg retaliated against him and interfered with the exercise of his FMLA rights. The case boiled down to whether or not Bonkowski’s admittance to the hospital, where comprehensive testing was performed prior to discharge, was considered “inpatient care in a hospital” to qualify for FMLA protection under 29 U.S.C. § 2611(11)(A).
While the medical records indicated that Bonkowski was admitted as an “inpatient,” this was not determinative of the issue. “Inpatient” is defined for purposes of the FMLA as “an overnight stay in a hospital, hospice, or residential medical facility, including any period of incapacity as defined in 29 C.F.R. § 825.113(b), or any subsequent treatment in connection with such inpatient care.” 29 C.F.R. § 825.114 (emphasis added). Therefore, the trial court interpreted this to mean that Bonkowski must have stayed overnight to qualify as receiving inpatient care, and the hospital’s designation, at best, meant only that his condition required an overnight stay, not that he actually stayed overnight.
Here, Bonkowski was admitted just after midnight and discharged in the early evening of that same day. The employer argued that an overnight stay in a hospital means a stay in a hospital from one calendar day to the next, measured by the inpatient’s date of admission and discharge. Bonkowski, on the other hand, argued that he stayed overnight at the hospital from November 14, 2011 to November 15, 2011 because he arrived at the hospital shortly before midnight and was discharged the early evening of the next day. The trial court did not see it that way, holding that Bonkowski did not qualify under the FMLA. The Third Circuit majority affirmed, providing that it was the date of admission rather than arrival that determined whether he stayed overnight at the hospital.
This created the “calendar day” bright line test, aimed at providing better predictability for determining when an employee is covered under the FMLA:
“This should help simplify any disputes arising out of the regulation’s ‘overnight stay’ language (and perhaps even help to deter future disputes and FMLA violations because a bright-line interpretation should put employers (and their employees) on notice of when exactly an employee is entitled to leave under the FMLA and § 825.114.” Id. at 209.
Further, in an attempt to prevent any “absurd” results under this rule, the Third Circuit held that not only must a patient stay overnight, as measured by one calendar day to the next, but the individual must stay for a “substantial period of time” and usually “a minimum of eight hours.”
This decision; however, was not without disagreement. Judge Fuentes strongly advocated for a “totality of the circumstances” approach in his dissent. Accordingly, he highlights the added benefit of assessing the entire picture of an employee’s hospital experience (e.g. severity of the medical issues and tests required) rather than simply relying on an arbitrary temporal restriction. “Denying FMLA protection to an employee who enters the hospital one day and remains there much of the day, totaling close to nineteen hours, is, in effect, truncating coverage and construing exceptions broadly. This denial is simply inconsistent with the remedial purpose of the FMLA.” Id. at 211-215 (Judge Fuentes Dissenting).
For better or worse, until the “overnight” language in the FMLA is more precisely defined, we are left with a bright line test providing that a “serious health condition,” triggering protection under the FMLA, requires the employee to remain an inpatient from one calendar day to the next and for a substantial period of time. Although this may not capture the total picture of the employee’s medical care, it does provide employers with a more reliable tool for predicting, and hopefully avoiding, FMLA disputes.
THE PHILADELPHIA LABOR GROUP AT OFFIT KURMAN
ABOUT NEIL A. MORRIS
Neil Morris has passionately represented employers for the last 25 years. Mr. Morris specializes in the areas of labor and employment, municipal labor law, employment discrimination, defamation and business litigation. Mr. Morris has served as Special/Labor Counsel for more than 35 Pennsylvania Townships and Boroughs, the County of Bucks and many private employers. He is often brought into municipalities to handle “crisis” situations involving employees and/or management.
ABOUT GABRIEL CELII
Mr. Celii devotes his practice to general litigation. He has experience working on all phases of litigation and on cases ranging from antitrust and false claims recovery to contract disputes. In this capacity he has primarily devoted his efforts to the uncovering of information in support of claims and defenses through targeted discovery.
Mr. Celii also assists businesses engaged in employment related disputes and negotiates settlements on their behalf. He has successfully enforced non-compete agreements and obtained liquidated damages on behalf of his clients.
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