[author: Scott Cruz]

In a recent decision, a federal district court in Minnesota held that the cumulative effect of multiple health conditions may be considered by a jury to determine whether an employee suffered from a serious health condition that entitled her to an FMLA leave of absence, even though each condition on its own likely did not qualify as a serious health condition under the FMLA (Fries v. TRI Mktg. Corp.).

Fries worked for TRI as a telemarketer and administrative assistant and suffered from genital herpes and interstitial cystitis. On the Friday prior to her termination, Fries missed work because of alleged pain and frequent urination. The next day, she claimed to have difficulty urinating and by the evening could not urinate. On Sunday, Fries went to the emergency room, where her doctor attributed her urinary retention issue more to the herpes than to the interstitial cystitis. The ER doctor installed a catheter in Fries, prescribed medications, and instructed her to take off Monday and return to work on Tuesday. While at the ER, Fries texted her supervisor and informed her that she was in the hospital and had a doctor’s note to miss work on Monday. Her supervisor texted her back, allegedly informing Fries that if she missed work on Monday she would be terminated.

Fries did not go to work on Monday, but did return on Tuesday with her catheter drainage bag in place and her drainage bag visible. On Wednesday, Fries met with her supervisor and TRI’s owner. During the meeting, TRI’s owner first told Fries that she was being suspended because she was absent on Monday. Fries told him that it was illegal to suspend an employee because of a medical absence and threatened to sue. Subsequently, Fries was fired. Significantly, at his deposition, the owner testified that Fries threat to sue TRI was “a little bit” of the reason for her termination. And, her termination letter read, in part, “Originally was suspended for 30 days, threatened to sue company and management. It was then decided that termination was the best.”

Fries brought an FMLA interference and retaliation claim against TRI, which moved for summary judgment, arguing that Fries did not have a “serious health condition” under the FMLA because she was not incapacitated for more than three days. Specifically, TRI argued that Fries’ interstitial cystitis caused her urinary issues on Friday and Saturday and her herpes caused her inability to urinate on Sunday and her Monday absence. According to TRI, therefore, because Fries’ herpes caused her to miss work on Monday, that condition did not result in Fries being incapacitated for three or more days.

In rejecting TRI’s argument, the court acknowledged that each of Fries’ medical conditions alone may not have incapacitated her for three or more consecutive days, as required by the FMLA. However, both the Seventh and Eight Circuit Court of Appeals have held that two conditions that alone do not constitute a “serious health condition” can together rise to that level where they are “temporary linked” and affect the “same organ system.” Therefore, the court stated that the focus should be on the cumulative, adverse effects of the related medical conditions afflicting the employee at the time she seeks leave from work. Regarding her retaliation claim, the court concluded that because TRI’s owner admitted that Fries’ threat to sue was at least “a little bit” of the reason for her termination, and her termination letter stated that Fries only was going to be to suspended until she threatened to bring a lawsuit, a jury could conclude that TRI violated the FMLA by retaliating against her for threatening to sue.

Based on this decision, an employer should not automatically deny an employee’s request for FMLA leave just because the employee was absent from work for less than three consecutive days. Rather, if an employee is absent from work even for three days or less because the employee is suffering from multiple health conditions, the employer should determine whether the conditions are “temporally linked” and affect “the same organ system,” such that these in combination may trigger a “serious health condition” under the FMLA. If the answer to both these questions is “yes,” and all other requirements for an FMLA leave of absence have been met, an employer should grant the request for FMLA leave. Additionally, be mindful of the “commonsense” best practice here: Don’t fire an employee immediately after she threatens to file a lawsuit against you for violating her federally-protected rights (unless you have a rock solid non-discriminatory reason for doing so and with the advice of counsel), and certainly don’t indicate that was the reason in that employee’s termination letter.