Pollard v. New York Methodist Hospital

What the court decided

A hospital medical records clerk had surgery to remove a painful, growing mass on her foot. Her doctor told the hospital the surgery was needed right away; the hospital demanded 30 days' notice, and when she went ahead with the surgery it fired her for missing work. The FMLA covers a condition requiring "multiple treatments" that would likely cause more than three consecutive days of incapacity if untreated. The court held that routine follow-up visits after surgery, to check the wound, change the dressing and remove the sutures, are part of the treatment of the condition, at least when they were predictable from the outset. Her testimony and her doctor's raised a genuine question whether the growth would have incapacitated her for more than three days. The court also held that an employer that does not get a second medical opinion may still dispute the certification, and that a finding in her unemployment case that she gave notice as soon as practicable did not bind the hospital, because Labor Law 623(2) gives those findings no preclusive effect.

Who won

The employee won this round. The Second Circuit vacated summary judgment for the hospital and sent the case back to decide whether she gave adequate notice, but rejected her arguments that the hospital was barred from contesting her claim.

Why it matters for workers with a medical condition

Planned surgery and the follow-up visits it requires can be FMLA leave. Tell your employer as early as you can, and do not count on an unemployment decision to settle the notice question.

Key passage: 861 F.3d 374 at 379-82.

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This page summarizes the decision in plain language.