Minor Surgery May Be a Serious Health Condition Under FMLA

A former hospital clerk may proceed on a claim that she was improperly terminated under the Family and Medical Leave Act (FMLA) after taking time off for foot surgery.  In Pollard v. The New York Methodist Hospital, plaintiff Jacintha Pollard requested leave for surgery to remove a benign soft tissue mass that caused increasing levels of pain and had impacted her work.  On March 19, 2013, the employee scheduled surgery to have the mass removed on March 28, 2013.  When her physician provided the hospital with medical documentation indicating that she suffered from a serious health condition that required surgery on March 28 and several weeks of leave thereafter, the hospital denied her request because she had failed to provide at least thirty days’ notice of foreseeable leave.  Despite this, Pollard elected to proceed with the surgery on March 28.  She was subsequently terminated for her unauthorized absence.  Pollard was released to return to work on April 18, 2013.
 
After her termination, Pollard filed suit alleging that she was terminated for taking leave to which she was eligible under FMLA.  The hospital filed a motion for summary judgment that sought to dismiss the case because (1) her medical issue was not a “serious health condition” under the statute; and (2) she failed to comply with FMLA’s notice requirements.  The lower court granted the motion because Pollard’s medical issue did not constitute a “serious health condition” under FMLA.   Pollard appealed.
 
The United States Court of Appeals for the Second Circuit reversed the lower court’s decision.  It reasoned that genuine issues of material fact existed regarding whether Pollard’s foot condition constituted a “serious health condition,” which is defined by applicable regulations as including conditions for which multiple treatments are provided and which would result in incapacitation from work for three or more calendar days without them.  The Second Circuit concluded that Pollard presented sufficient evidence to create genuine issues of material fact where she had multiple appointments with her physician, both to have surgery and to monitor her recovery hereafter, and that the severity of her condition and its concomitant impacts were increasing such that it might have resulted in incapacity of three or more days.