1st Aug 2016

Occasionally, I receive an inquiry from an employee who requested FMLA leave but never consulted a health care provider regarding their illness. A recent case from the Western District of Wisconsin serves as a reminder of why that can be problematic for such employees.

In Jallow v. Kraft Foods Global, Inc., Ebrima Jallow, an employee who had requested and received FMLA leave on numerous occasions throughout his twelve years of employment with Kraft Foods Global, Inc., found himself suffering from a cold which, in combination with his medications, rendered him too drowsy to be able to work. As a result, Mr. Jallow was forced to miss an entire week of work. Due to issues related to his absences during that week, Kraft Foods Global, Inc. opted to terminate Mr. Jallow’s employment. Despite this, Mr. Jallow wisely submitted a request for FMLA leave and a medical certification indicating he was unable to work during his weeklong absence. Kraft Foods Global, Inc. opted to uphold the termination despite the information provided by Mr. Jallow and a lawsuit followed.

Kraft Foods Global, Inc. made a series of arguments at the summary judgment stage, including that Mr. Jallow was not eligible for FMLA leave for the absence that ultimately led to the termination of his employment. Mr. Jallow opted to argue his eligibility for FMLA leave not under the more common provision of the FMLA that requires a period of incapacity of more than three calendar days that also involves continuing treatment by, or under the supervision of, a health care provider, but rather under the chronic condition prong of the FMLA that required him to prove periodic visits for treatment by a health care provider for a condition that continues over a extended period of time. In an effort to meet that standard, Mr. Jallow argued that the cold from which he was suffering was exacerbated by his HIV positive status.

In rejecting Mr. Jallow’s argument, the Court focused on the fact that Mr. Jallow had produced no medical evidence supporting his claim that his illness was impacted by his HIV status. The Court noted: “expert testimony is not required to prove a serious health condition, but [a] plaintiff is still required to put forth medical evidence to support a finding that he was afflicted with a serious health condition at the time that he requested FMLA.” Typically, such information would be contained in the FMLA certification paperwork, the plaintiff’s medical records, and sometimes even in the doctor’s note taking the employee off from work. Unfortunately for Mr. Jallow, his medical records did not support his claim of a chronic condition because he did not visit his doctor periodically (defined by the FMLA’s governing regulations as at least twice per year) for treatment of his HIV and he was found to be asymptomatic and his condition stable at the time of his most recent doctor’s visit so there was nothing for which he was being treated.

“Whether an illness or injury constitutes a ‘serious health condition’ under the FMLA is a legal question that the employee may not sidestep in the context of summary judgment merely by alleging his condition to be so.” This serves an important reminder for employees and their counsel alike when dealing with the FMLA – always make sure you have medical evidence, preferably in the form of documentation from a health care provider, substantiating the need for FMLA leave including the underlying medical condition(s) and treatment(s) therefor. Simply claiming your absence should have been covered by the FMLA is not enough when it comes time to prove your case in court.

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