Tuesday, February 20, 2018

The FMLA does not cover dead pets (maybe)

‘E’s not pinin’! ‘E’s passed on! This parrot is no more! He has ceased to be! ‘E’s expired and gone to meet ‘is maker! ‘E’s a stiff! Bereft of life, ‘e rests in peace! If you hadn’t nailed ‘im to the perch ‘e’d be pushing up the daisies! ‘Is metabolic processes are now ‘istory! ‘E’s off the twig! ‘E’s kicked the bucket, ‘e’s shuffled off ‘is mortal coil, run down the curtain and joined the bleedin’ choir invisible!! THIS IS AN EX-PARROT!!
In all seriousness, it sucks to lose a pet.

But, does it qualify an employee for FMLA leave?

According to the court in Buck v. Mercury Marine (E.D. Wisc. 12/22/17), the answer is a qualified “no.”

The employee, Joseph Buck, worked as a machinist for Mercury Marine. He also had a dog, which, on May 26, 2014, he had to put to sleep. That day he called his supervisor and asked for a vacation day (which was granted) because of how upset he was.

The next day, Buck called again and explained that he had not slept since the loss of his dog and would not be able to work. Mercury Marine considered that absence unexcused.

That same day, he sought treatment at the ER and was diagnosed with “situational insomnia,” which a nurse documented in a note that Buck presented to his employer. Despite the note, the absence, and all others over the next three months, were considered unexcused.

Ultimately, Mercury Marine terminated Buck for accumulated unexcused absences, and he filed suit under the FMLA.

The district court dismissed Buck’s FMLA claim, concluding that while inability to sleep caused by the death of a pet could potentially constitute an FMLA-covered “serious health condition,” Buck had failed to show that his condition met that definition.

A serious health condition entitling an employee to FMLA leave means an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.
  • Inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility.
  • Continuing treatment means a period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition.

The court concluded that because Buck’s treatment met neither prong of the definition of a “serious health condition,” the FMLA did not cover his absences:
The record contains no evidence that the plaintiff sought, or obtained, medical attention for the insomnia, other than his one visit to Nurse Baseley—no prescriptions, no treatment reports, nothing…. The nurse’s letter does not categorize the insomnia as chronic, or say whether she expected it to continue. There is no evidence to support the plaintiff’s statement that he had been suffering from intermittent, shift-related insomnia for months.

This is not to say that an employee can never qualify for FMLA leave following the death of a pet. It just means than an employee’s resulting mental condition must otherwise meet the FMLA’s definition of a “serious health condition.” 

One more thing. If an employee is that broken up about losing a beloved pet, do what Mercury Marine did in this case, and grant the employee a day to recover. You’ll be a better employer for it.