FMLA claim reinstated against hospital

A federal appeals court has overturned a lower court ruling and reinstated a Family Medical Leave Act claim filed by a hospital clerk who was terminated after she took time off for foot surgery.

The U.S. District Court in Brooklyn, New York was wrong in ruling that Jacintha Pollard, who was dismissed from her job as a hospital clerk for the New York Methodist Hospital, had not proven she had a “serious health condition” under the FMLA, says Thursday’s ruling by the 2nd U.S. Circuit Court of Appeals in New York in Jacintha Pollard v. The New York Methodist Hospital.

Ms. Pollard had worked at the Brooklyn hospital between September 2000 and April 2013 as a medical records file clerk, a job requiring that she stand and walk for most of the day, according to the ruling.

In January and February 2013, she noted a growth on her left foot that became increasingly painful. On March 19, 2013, a podiatrist said the growth was a benign soft tissue mass and offered Ms. Pollard either surgery or conservative care, and Ms. Pollard opted for surgery.

Surgery was scheduled for March 28, but the hospital denied her request for leave, stating the FMLA required 30 days’ notice of an employee’s leave when that leave was foreseeable.  The surgery proceeded as scheduled, and Ms. Pollard was terminated.

She filed suit, charging violation of the FMLA.  The District Court ruled the hospital was entitled to judgment as matter of law because Ms. Pollard could not prove she had a “serious medical condition.”

On appeal, a three-judge appeals court panel unanimously disagreed. “The District Court concluded that Pollard’s growth could not qualify as a ’serious health condition;’ because it did not require or occasion ‘multiple treatments,” which is a requirement under the FMLA, said the ruling.

“In the District Court’s view, as we understand it, Pollard’s condition in question was the growth on her foot, which was eliminated by surgery, so that her two post-surgical follow-up visits, at which the doctor examined the wound, changed the dressing, and removed the sutures, did not constitute treatment of the growth, but rather treatment of the wound created by the surgery.”

This analysis “depended on an excessively narrow concept of ‘treatment’ that is not consistent with the regulation,” said the panel, in ruling Ms. Pollard had a “serious health condition” and vacating the lower court ruling.

The panel remanded to the court the question of whether Ms. Pollard was compelled to provide at least 30 days’ notice of her intention to take leave.