The case is Pollard v. New York Methodist Hospital, decided on June 30. Plaintiff was a medical files clerk who stood on her feet for most of the day. Her doctor determined that the painful growth on plaintiff's foot might be precancerous and needed to be removed, and he set a surgery date of March 28, 2013. The doctor told plaintiff's employer that her foot situation was a "serious health condition" and that she needed medical leave from March 28 through April 18, 2013. The hospital objected and said FMLA leave cannot be granted unless the employee gives 30 days notice, which plaintiff did not. Plaintiff had the surgery as scheduled and was fired a few days later. Afterward, the doctor performed certain postsurgery tasks, like examining the wound and changing the dressing.
Rejecting the district court's analysis, the Second Circuit (Leval, Lohier and Koeltl [D.J.]), says plaintiff had a serious medical condition under the FMLA. Under the Act, “serious health condition” as including “an illness, injury, impairment, or physical or mental condition that involves ... continuing treatment by a health care provider.” “Treatment” is defined as including “examinations to determine if a serious health condition exists and evaluations of the condition.” 29 C.F.R. § 825.113(c).
The district court said plaintiff did not have a serious health condition because her condition was eliminated by the surgery and that her two post-surgical follow-up visits, at which the doctor examined the wound, changed the dressing and removed the sutures, did not constitute treatment of the growth, but rather treatment of the wound created by the surgery. The Circuit disagrees.
We see no reason why post‐surgical change of dressing and removal of sutures does not qualify as part of the treatment of the condition that occasioned the surgery—at least if such postoperative treatment was medically predictable from the outset. The Hospital made no showing that such follow‐up visits for treatment of Pollard’s wound were not a routinely‐expected, reasonably‐required part of the surgical treatment of the growth. Accordingly, at least for purposes of the Hospital’s motion for summary judgment, Pollard satisfied 29 C.F.R. § 825.115(e)’s requirements of “[c]onditions requiring multiple treatments,” and a ”period of absence to receive multiple treatments (including any period 1 of recovery therefrom) by a health care provider.” 29 C.F.R. § 825.115(e).
The Court of Appeals says in a footnote that "A different conclusion might conceivably follow if the surgery did not predictably call for follow-up, but instead, the need for subsequent visits arose from unexpected complications caused by the surgery." In this case, however, "This course of multiple treatments thus would qualify as a 'serious health condition' under the terms of the regulation if the condition 'would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of medical intervention or treatment.' 29 C.F.R. § 825.115(e)(2)."
So what about the hospital's argument that plaintiff was fired because she did not give proper notice of her FMLA? That issue is remanded for the district court.