8-7-12; Refilling prescriptions on a Work Day? Better think twice. Ellen Keefe-Garner explains why the FMLA DOES NOT protect employees from leaving work to run errands

An employer may terminate an employee who attempts to use the Family Medical Leave Act (FMLA) to take a day off work without obtaining medical treatment. In Robert Jones v. C&D Technologies, Robert Jones appealed from a finding in favor of his employer after he was terminated for excessive absenteeism.  

Jones, a machine operator at C&D technologies, had some medical problems, including anxiety and back pain. In October of 2009, Jones took off a full day of work to go to a doctor’s appointment in the afternoon. On the same day and before seeing the doctor in the afternoon, Jones went to the offices of another doctor without first making an appointment to ask that doctor to give him a note to refill some prescriptions. 

He and his employer subsequently got into a dispute about the time he had taken off in the morning to pick up the written prescriptions. The dispute centered on whether Jones should have taken off the whole day of work or just the afternoon. The employer had a policy of assessing points against employees who took unexcused absences of more than 30 minutes. The company ultimately assessed points against Jones for taking off the morning to get the prescription. Since Jones had already accrued other points for unrelated absences, the additional points he accrued for his unexcused morning absence brought his total points above the maximum allowable points, and the employer fired him. 

Following his termination, Jones sued his employer, arguing his time off to pick up the prescriptions in the morning was an FMLA-excused absence.  The employer argued the morning absence was unexcused and required the assessment of points since Jones had not received any medical treatment when he picked up the prescriptions.  

In upholding a ruling in favor of the employer, the Seventh Circuit Court of Appeals noted in order to be entitled to FMLA leave, the employee must have a serious medical condition that makes them unable to perform his job duties. The Court noted a serious medical condition is one in which the employee must be absent from work in order to obtain medical treatment. Alternatively, the court reasoned an absence for unnecessary treatment or for no medical treatment at all means the employee is not sufficiently incapacitated to be unable to perform his job duties.  

The court ultimately held despite Jones's visit to his doctor's office to pick up some written prescriptions, the visit, without more, did not constitute treatment under the FMLA as a matter of law. In arriving at its conclusion, the court emphasized there had been no scheduled appointment with the doctor and the doctor had not actually examined Jones. Since Jones had not received any real treatment from the doctor, the court found his employer had been justified in assessing points and in firing him because of his unexcused absences. 

For a copy of the case noted above or any related questions cases, please email Ellen Keefe-Garner JD, RN, BSN at EMKeefe@keefe-law.com or call her directly at 312-756-3734.