No – the Eighth Circuit Court of Appeals recently held that a single prescription for medication is not sufficient to establish a serious health condition under the Family and Medical Leave Act (FMLA), unless it is “under the supervision of a health care provider.” Johnson v. Wheeling Machine Products et al., No. 13-3786 (8th Cir., Feb. 20, 2015).
In Johnson, the employee left work early and went to the doctor on May 11, 2011, because he was not feeling well. A physician assistant gave the employee a prescription for high blood-pressure medication and told him to follow up with his regular physician, but the physician assistant did not tell the employee when he should schedule the follow-up appointment. The physician assistant also gave the employee a note excusing him from work and stating that he could return to work on May 16, 2011.
When the employee brought the note to work, the employer questioned its authenticity and also believed that it was not sufficient under the employer’s policy because it did not state the reasons for the employee’s absences. The employee subsequently provided two more notes, but neither of them provided a more detailed explanation for the absences. The employer then suspended the employee on May 16, 2011, and terminated his employment on May 18, 2011. The employee later sued, alleging that the employer violated his FMLA rights. The district court dismissed the employee’s claims on summary judgment.
In analyzing the case on appeal, the Eighth Circuit explained that in order to demonstrate that the employer interfered with the employee’s entitlement to FMLA leave, the employee must first establish that he was entitled to FMLA leave due to a serious health condition. One way that an employee can establish a serious health condition is by proving a period of incapacity for three or more days plus “[t]reatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of a health care provider.” 29 C.F.R. § 825.115(a)(2). DOL regulations further define “regimen of continuing treatment” to include “a course of prescription medication.” 29 C.F.R. § 825.113(c).
The Johnson court held that the employee failed to prove a serious health condition because, although he received prescription medication, it was not under the “supervision of a health care provider.” The court explained that:
We believe the supervision requirement must be given effect. To interpret the regulation as requiring only a single visit to a health care provider, followed by a course of prescription medication, would be to read the “supervision” language out of the provision . . .
If a person’s health condition is indeed “serious,” it follows that the patient’s regimen of continuing treatment would involve either supervision – for example a phone call with the health care provider to communicate updates on the patient’s condition and progress – or a follow-up appointment soon after the first visit (which, if fulfilled, could satisfy the two-treatment definition).
Because the physician assistant simply prescribed medication to the employee and sent him on his way, the court held that the plaintiff did not satisfy the “regimen of continuing treatment” definition of serious health condition.
The court also rejected the argument that the employee established a serious health condition by showing “[t]reatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider . . . .” 29 C.F.R. § 825.115(a)(1). The court held that the employee did not satisfy this definition of serious health condition because the physician assistant “did not indicate a time period within which he should follow up with his regular doctor.” The court further explained that “[v]ague assertions about a follow-up appointment without specificity as to its timing are not sufficiently probative to permit a finding in [the employee’s] favor . . . .”
Because the employee did not establish that he had a serious health condition under the FMLA, the Eighth Circuit affirmed the district court’s order dismissing the case on summary judgment.
Takeaway: An employee’s receipt of prescription medication, without “supervision” by a health care provider, is not sufficient to establish a serious health condition under the FMLA. However, whether the supervision requirement is met will vary depending on the individual circumstances, so employers should continue to exercise caution whenever denying a request for FMLA leave.