FMLA protects worker with ulcer fired for absenteeism.

The Third Circuit has ruled that a hospital worker with a recurring ulcer who was fired for taking too much sick leave can sue under the Family and Medical Leave Act (FMLA).

In reversing summary judgment, the court found that plaintiff Kathleen Victorelli's peptic ulcer disease may be covered by the act because it is a "serious health condition." Her employer had argued that the ulcer was a "minor" illness because Victorelli had only been treated twice for it. (Victorelli v. Shadyside Hospital, 128 F.3d 184 (3d Cir. 1997).)

FMLA is the 1993 federal labor statute that provides time off for workers whose personal or medical circumstances necessitate leave in excess of what their employers are willing to provide. Eligible employees are allowed to take up to 12 weeks of unpaid leave for medical reasons, or for the birth or adoption of a child, or the care of a sick child, spouse, or parent.

More specifically, FMLA applies when an employee's own serious health condition makes the employee unable to perform the functions of a job. Employees who take leave under the act are entitled to the same or equivalent job and benefits when they return.

Victorelli worked for Shadyside Hospital in Pittsburgh from 1989 to 1994 as a central service technician. She was terminated after she requested sick leave when her ulcer flared up. Her supervisor told her several days later that she was being discharged because of previous attendance problems and for abusing sick leave.

Throughout her tenure at Shadyside, Victorelli was given high marks in her job evaluations, but she had also received written warnings for tardiness and absenteeism and was counseled under the hospital's progressive disciplinary policy. In May 1994, she was warned that any subsequent attendance violations would result in her dismissal.

After she was fired, Victorelli sued the hospital, claiming it violated FMLA when it terminated her. She argued that she had informed the hospital about her peptic ulcer disease and had also disclosed that she suffered from recurring sinusitis and inner ear infections. While Shadyside knew of her medical ailments, it never sought medical documentation about the absence that precipitated her termination. In depositions, Victorelli's supervisor stated she believed that Victorelli had never feigned illness to get out of work.

The district court granted Shadyside Hospital's motion for summary judgment on grounds that Victorelli failed to establish she had a "serious health condition" under FMLA requirements and thus was not protected under the act. The district court relied on the Labor Department's "interim final rule," a temporary regulation that was in effect when Victorelli was terminated. Both parties agreed that the rule applied in this case, as did the Third Circuit on appeal, although the appellate court noted that its ruling would be the same under the final regulations.

The Third Circuit ruled that Victorelli was protected under FMLA because the ulcer was a recurring condition that required "continuing treatment." Victorelli's visits to her physician to treat her underlying symptoms as well as the medication she was prescribed constituted "continuing treatment," the court said. In addition, the court found that Victorelli's condition was a chronic one, which satisfied another subsection of the interim final rule under FMLA.

The court wrote, "The intent of FMLA is not simply to protect those whose condition causes continual incapacity. It is also intended to protect those who are occasionally incapacitated by an on-going medical problem."

The defense has filed for reargument in the case.

Pittsburgh attorney James Carroll Jr., who represented Victorelli, said the case is significant because it sends a message to trial courts that they should not be afraid to interpret the statute broadly.

"FMLA cases can be as difficult to win as those involving the Americans with Disabilities Act," Carroll said. "Often, both kinds of cases are being decided too narrowly, so that the statutes--which were designed to protect people and act as safety nets--end up protecting no one."