Take Bob.  He is a machine operator.  Bob suffers from back and leg pain as well as bouts of anxiety.  As a result, he typically visits with his physician every couple of months and is on prescription medication.  He’s been approved for intermittent FMLA leave as a result of his serious health condition(s).

On September 30, he informs his employer that he has an appointment with a back specialist the following afternoon on October 1.  On October 1, however, he instead takes the whole day off — both morning and afternoon.  In the morning, he picks up his paycheck from work, visits with his primary care physician (receiving no treatment, but simply a prescription refill), refills the prescription at Walgreens, and drives out to his afternoon medical appointment.

Not surprisngly, Bob’s employer is not amused.  It excuses his afternoon absence because he treated with a back specialist, but tags him for 1/2 attendance point for his morning absence, putting his attendance point total over the top and resulting in his termination.

Foul,” Bob cries, and he sues his employer because he believes it interfered with his right to take FMLA leave for: 1) his visit with his physician in the morning; and 2) his trip to Walgreens to refill medication.  Both, he claims, are protected by the Family and Medical Leave Act.

Court Denies Bob’s FMLA Claim

Bob’s FMLA interference claim faced a buzz saw in the federal court.  Let me explain why: To qualify for FMLA leave, an employee must not only have a serious health condition, but he also must be incapacitated from working as a result of the condition.  As the court pointed out, an employee who is receiving treatment for a serious health condition is “automatically considered to be unable to perform the functions of [his] position.”  On the flip side, said the court, unnecessary treatment or no treatment at all means that the employee is not incapacitated from working.  Jones v. C&D Techs, Inc. (pdf)

So, does a simple visit to a primary care doctor or a trip to the drug store to fill a prescription constitute “unnecessary” treatment or no treatment at all?

Visit to Primary Care Physician

According to the FMLA regulations, “routine” examinations with a health care provider ordinarily will not constitute treatment necessitating FMLA leave.  Rather, the examination must determine whether the serious health condition exists or serve as an evaluation of the condition.  Here, the court determined that Bob showed neither:

Bob’s doctor never evaluated or examined Bob, and Bob even conceded in a deposition that he was never “physically examined” that morning.  Bob arrived at his doctor’s clinic unannounced and appeared only to briefly speak with his physician in the office lobby.  The entirety of his interaction with his doctor consisted of the physician’s acquiescence to refill a prescription.  There is simply no evidence that Bob was examined, and therefore treated, that morning.

Therefore, Bob’s visit with his physician in the morning was not covered by the FMLA.

Trip to Drug Store to Fill a Prescription Not Covered by the FMLA

The Court also made quick work of Bob’s claim that his trip to the drug store to refill his prescription should be considered FMLA leave.  To this, the court responded with a resounding NO.  Notably, although the court pointed out that a prescription-refill note might be evidence that Bob has a serious health condition, it is not evidence that he received treatment that required him to be absent from work that morning.  Bottom line: FMLA leave cannot be taken to fill and refill prescriptions.

Insights for Employers

So, what’s the lesson to be learned here?  Although this court decision is not a shocker, it is a good reminder of how an employer should handle an employee’s absence under the FMLA where treatment is involved.  As the court properly pointed out, where a doctor’s visit is the reason for the absence, it likely only qualifies for leave where the employee’s serious health condition actually is being evaluated.  Courts tend to take a reasonably broad view of a medical appointment as treatment, but clearly there are limits.  A doctor’s visit without an examination or a trip to Walgreens simply is not going to count.