Good timing can mean the difference between success and failure, and waiting too late can cost you—as a transit employee discovered the hard way. Although this case comes from a different state, it’s still helpful when defending Family and Medical Leave Act (FMLA) claims in Texas.
As a threshold matter under the FMLA regulations, an employee with a chronic serious health condition visits a healthcare provider at least twice a year for treatment.
The operative time for determining whether a particular condition qualifies as a chronic serious health condition is the time the leave is requested or taken. Treatment occurring after the employee takes leave is irrelevant to whether they suffer from a chronic serious health condition under the FMLA.
Ephriam Rodriquez worked as a bus operator for the local transit authority, but he had attendance issues. He missed work on June 8, 2018, because of a migraine, which caused him to accumulate more attendance points than were allowed under the terms of the collective bargaining agreement (CBA). His employer held an informal hearing on June 26 at which it recommended taking steps to discharge him.
Rodriquez visited a doctor on July 3 to obtain FMLA leave forms. Although he had suffered from severe migraines all his life, he had never seen a healthcare provider about them before this visit. The doctor checked off on the form that Rodriquez needed to have treatments at least twice per year because of his condition. Rodriquez submitted the FMLA forms to his employer’s third-party FMLA administrator on July 11.
On July 12, the employer held a formal hearing at which it approved the termination of Rodriquez’s employment, although the discharge paperwork wasn’t finalized until July 16. He sued for FMLA interference and retaliation.
According to the court, “the operative time for determining whether a particular condition qualifies as a serious health condition is the time the leave is requested or taken.”
Here, the barn door was closed after the horse bolted. The FMLA regulations were written—as was the law—to prevent abuse of the right to FMLA leave. Without “speed bumps” to be eligible, all absences would turn into FMLA leave. Because Rodriquez didn’t seek healthcare treatment until after his absence, the court said his absence didn’t qualify for FMLA leave.
Now let’s say Rodriquez had completed the FMLA forms before the absence that caused him to exceed the limits of his CBA. The day he did not come to work would have been a protected FMLA day for which he could not have been terminated. But that wasn’t the case, and the court sided with his employer. Rodriquez v. Southeastern Pennsylvania Transportation Authority, (3d Cir., September 26, 2024).
In analyzing FMLA claims and requests, follow this article’s flow-chart approach.
Michael P. Maslanka is a professor at the UNT-Dallas College of Law. You can reach him at michael.maslanka@untdallas.edu.
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