HR pros often have to rely on physicians’ opinions to make difficult FMLA administration decisions. But what happens when a physician changes his story?
That question was at the center of Kossowski v. City of Naples. In this case, Kossowski went to see a doctor after having “respiratory problems.” During the visit, Kossowski was diagnosed with bronchitis and prescribed a Z-Pak of antibiotics and some cough syrup.
Following the appointment, Kossowski called in sick and requested FMLA leave. At this point, the company followed standard procedure and asked Kossowski to fill out a certification about his serious health condition.
After not going to work for several days, Kossowski went to his doctor’s to get his FMLA documents filled out. His doctor filled out the certification, noting that he’d treated Kossowski once for his condition.
Based on that certification, the company determined that Kossowski’s bronchitis wasn’t actually a “serious medical condition” for FMLA purposes and eventually terminated him.
Kossowski responded with an FMLA interference lawsuit.
What the court said
Based on the wording of the actual FMLA regs, the company probably thought it was justified in its decision.
To be considered a serious medical condition for FMLA purposes, the condition must either require “inpatient care” or “continuing treatment by a health care provider.”
Because Kossowski’s condition didn’t require inpatient care, he needed to prove that his bronchitis required continued treatment, which the FMLA defines as:
Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider.
Since his doctor stated that he only treated Kossowski once, he clearly wasn’t eligible for FMLA … or so the company thought.
But here’s where things got tricky. In court, Kossowski’s doctor contradicted what he wrote on the certification form and stated that he’d actually treated the patient twice: Once when Kossowski was first diagnosed and given a Z-Pack and some cough syrup — and again when he filled out the certification.
And that was all it took for the court to deny summary judgment for the company. Because of the conflicting evidence about how many times Kossowski was actually treated, the court said “that the inference arising from these facts may differ” for FMLA eligibility purposes.
Now the company is facing a drawn out lawsuit or an expensive settlement.
Letter of law vs. common sense
On the surface, this ruling is extremely troubling for employers. After all, this company was simply responding to the details a healthcare provider filled out in an official FMLA certification. Should this firm really be punished for the doctor’s inconsistent statements?
But there’s another way of looking at this. The company didn’t have to terminate the employee — an employee who clearly had an illness that required a few days off — even though he wasn’t eligible for FMLA leave.
Had Kossowski’s employer been a bit more lenient, it likely would’ve avoided this whole mess altogether.