Employers know that in order for an employee to qualify for FMLA protection, that employee must have a serious health condition that makes the employee unable to perform the functions of his or her job. A “serious health condition” is defined by statute 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 by a health care provider.”
A great number of trees have been sacrificed in the discussion of “continuing treatment” but relatively little time has been devoted to defining “inpatient care”. The DOL defines inpatient care as “an overnight stay in a hospital, hospice or residential care facility…” If that seems pretty clear, you have underestimated the abilities of litigants to parse every word.
Take the case of Bonkowski v. Oberg Industries. Plaintiff Bonkowski was an employee with several apparent health conditions, including a deformed heart valve, diabetes and removal of his colon. During a disciplinary meeting with his supervisors, he began to suffer rapid heart beat and other symptoms which caused him great concern. At his request, his supervisors agreed to postpone the meeting so that he could resolve these symptoms. He went home but late that evening was taken to the hospital by his wife. Plaintiff claimed that he arrived before midnight but hospital records showed that he was first seen after midnight. He remained in the hospital, undergoing tests until his discharge with instructions to follow up with his doctor late that afternoon. He failed to report to work that day, as he was in the hospital, and his employer terminated him for his unexcused absence, despite Plaintiff’s attempt to obtain FMLA coverage for the time in question. Plaintiff sued, claiming that his employer had interfered with his FMLA rights by denying FMLA eligibility and claiming also that the company fired him in retaliation for requesting FMLA leave for that day.
A central issue in the case became whether he received inpatient care on his visit to the hospital that night and into the next day. Remember that the DOL regulations define inpatient care as an overnight stay in a hospital, hospice or residential medical care facility. Plaintiff claimed he arrived prior to midnight on one day and was released the following day, thereby fulfilling the overnight stay requirement. The employer disputed that he was in the hospital overnight. The District Court found in favor of the employer, adopting its definition of overnight stay as meaning that an individual has to be in a hospital, hospice or residential facility from sunset to sunrise.
The 3rd Circuit Court of Appeals overturned the District Court’s adoption of the sunset to sunrise rule as too vague in defining the term overnight because depending on the time of year and the geographic location, this time period can vary by several hours. Similarly it rejected the plaintiff’s definition that overnight stay has to be viewed under the totality of the particular circumstances of each case. The court also found this to be too vague and provided parties with no consistent guideline by which to make FMLA decisions.
Instead, the court held that the overnight stay definition is satisfied if an employee is in a hospital, hospice or residential care facility “from one calendar day to the next”. Acknowledging that this standard could be met with the execution of good timing alone, for example checking in at 11:58 p.m. and checking out an hour later, the court further defined an overnight stay to also require the employee spend a substantial amount of time at the care facility, which in most cases would be eight or more hours.
Employers should take note, while Illinois employers are not bound by this 3rd Circuit decision, it may serve as precedent in our jurisdiction if the issue is put to the test here. An employee may satisfy the inpatient care requirement of the FMLA if she or he is merely in the hospital from one calendar day to the next and that time includes eight or more hours. Of course, the FMLA contains other eligibility requirements as well, but it seems that, like so many other things, timing is everything.
