gavelEvery once in a while a court decision comes along that leaves us scratching our heads, wondering, “What do I do with this?” In the past we’ve written about Escriba and Lupyan. Today we bring you Johnson v. Wheeling Machine Products, a decision by the 8th Circuit Court of Appeals, where the court went into excruciating detail over the FMLA serious health condition circumstance known as the “regimen test.”

As you probably know, the FMLA allows an employee to take a job-protected leave for their own serious health condition, or that of a spouse, child or parent. The FMLA provides these six qualifying circumstances:

  • Inpatient care
  • Incapacity and treatment
  • Pregnancy or prenatal care
  • Chronic condition
  • Permanent or long-term condition; or
  • Condition requiring multiple treatments

At Reed Group, we see a number of “incapacity and treatment” cases, which can be substantiated two ways, as determined by the healthcare provider:

  • 2 or more treatments by a healthcare provider within 30 days (“treatment test”); or
  • At least 1 treatment by the healthcare provider resulting in a regimen of continuing treatment under the supervision of the provider (“regimen test”).

In the Johnson case, the employee took several days of leave, visiting a physician’s assistant (PA) at a clinic instead of his regular provider. The PA diagnosed Johnson with high blood pressure, prescribed medication, and told him to follow up with his regular doctor. After some back-and-forth about the sufficiency of his doctor’s note, the employer terminated Mr. Johnson.

The Court upheld the termination, focusing on the “regimen test.” The Court decided that, although Johnson was treated for high blood pressure, received prescription medication, and was instructed to follow up with his regular provider, his care was not sufficiently “under the supervision of a health care provider.” The Court concluded that under the dictionary definition of “supervision” the PA did not “’oversee, watch, or direct any part of the worker’s treatment regimen; he simply prescribed medication and sent him on his way.”

We haven’t seen a case take such an exacting stance on the definition of “supervision” in this context. Typically, when a healthcare provider examines a patient, prescribes medication, and recommends a follow-up visit, that establishes a serious health condition under the FMLA.  We wonder whether the Court was swayed by the fact that this was not Johnson’s regular provider, and perhaps the expectation or likelihood of follow-up was diminished. However, in this era of walk-in and urgent-care clinics popping up in drug stores and groceries, it stands to reason that more and more workers are forgoing visits to a traditional primary care provider in favor of a quick clinic visit.  The American Academy of Urgent Care Medicine, notes approximately 9,300 walk-in, stand-alone urgent care centers in the United States, and 50-100 new clinics every year. In addition to providing services typically associated with an emergency room, many of these clinics provide services associated with a primary care.

It’s always helpful when a Court provides guidance on the interpretation of a key word.  On the other hand, when it muddies the water or creates an additional layer of oversight, we aren’t quite as grateful.  Are employers expected to now determine whether an employee is being properly supervised during continuing treatment? We can’t imagine this would be a welcome scenario for employers, employees, or providers.

Reed Group is monitoring this case to determine if other courts or the Department of Labor will pursue this line of reasoning. We are also assessing the potential impact on employers and FMLA case management. We’ll keep you posted on this one!