Wednesday, June 3, 2015
Those who have ever sat in a traffic jam or spent hours in the emergency room might take note of the Third Circuit’s recent decision in Bonkowski v. Oberg Indus., holding the time an individual is officially admitted to a hospital can make or break her FMLA claim. The question the court answered was what constitutes an “overnight stay” at a hospital, which would determine whether Bonkowski could bring an FMLA suit against his employer for his termination for trying to deal with his medical issues.
The outcome was a calendar day plus rule: an overnight stay is “a substantial period of time” from one calendar day to the next measured by the employee’s time of admission and discharge. Bonkowski v. Oberg Indus., Inc., No. 14-1239, at *19 (3d Cir. May 22, 2015) (2-1)
A little background is instructive. The definition of “overnight stay” is the final link in a chain of statutory interpretation to determine whether an employee has a serious health condition that qualifies for FMLA protection. The statute itself defines a serious health condition as one “that involves inpatient care…or continuing treatment by a health care provider.” 29 USCS § 2611. But the DOL regulations further define “inpatient” as involving “an overnight stay in a hospital, hospice, or residential medical care facility.” 29 CFR 825.114. The question of what constitutes an overnight stay is therefore often crucial to whether an employee has a serious health condition under the FMLA.
The Third Circuit’s ruling indicates that a matter of minutes can negate an employee’s claim. Bonkowski was an employee of Oberg, the defendant employer, prior to being admitted to Butler Memorial Hospital. On November 14, 2011 he left work after experiencing chest pains and was admitted to the hospital a few minutes after 12:00 midnight. The following day, Oberg terminated Bonkowski for walking off the job. Though his time in the hospital as an inpatient spanned approximately fourteen hours, most of them in what would have been darkness at that place and time of year, the Third Circuit dismissed his FMLA suit against Oberg because he did not stay from one calendar day to the next.
A purely temporal standard does not seem particularly apt considering that Bonkowski would probably have won if he were admitted at 11:59pm – fourteen hours (in a hospital at least!) is a substantial period in anybody’s view. The announced standard frustrates the remedial purpose of the FMLA by failing to account for the ways admission might be delayed that are irrelevant to the severity of the patient’s medical condition. Bonkowski, as Judge Fuentes argued in dissent, because admission could be delayed by traffic, the particular day of the week, the overall amount of patients, understaffing, geographic region, etc. It also has the absurd result of providing coverage for an employee admitted at 11:00pm and discharged at 1:00am – depending on what “substantial” means – while denying coverage to individuals like Bonkowski.
So what led to this conclusion? Surprisingly enough, the trial court had adopted an even more draconian “sunset to sunrise” approach, which would be a surprise about the meaning of “overnight’ to anyone whose kids had a sleepover. The Third Circuit reasoned that such a rule would yield erratic results because sunset and sunrise are seasonal and vary according to geographic location. But it also criticized Bonkowski’s alternative “totality of the circumstances” test as being litigation-fomenting because of its unpredictable nature. This is likely accurate, but the “totality of the circumstances” has merit nevertheless since courts could consider all relevant factors of an employee’s hospital stay such as length of time, admittance to a room, the extent of testing, and whether the employee spent at least a portion of traditional night hours in the hospital. The totality of circumstances approach appears an improvement over the calendar day rule, but its propensity for increased litigation and inconsistent outcomes is problematic.
Perhaps the best definition is one that can be grasped by a reasonable employee, and, from that perspective, the Third Circuit’s ruling has the same propensity for confusion as the “totality of the circumstances.” While “calendar day” is clear enough, the Third Circuit declined to expand on what would constitute a “substantial period of time” between one calendar day and the next, suggesting (but not committing to) a minimum of 8 hours. Id., at *47. At this point, none of the proposed methods seem to balance equity with a definitive standard.
The most puzzling aspect of this debate is that Bonkowski was admitted as inpatient, yet the hospital’s designation was not enough to move the court. The District Court deemed this fact unpersuasive because, even though the hospital’s designation meant Bonkowski’s condition required an overnight stay, that did not mean he actually stayed overnight. Bonkowski v. Oberg Indus., 992 F. Supp. 2d 501, 509 n.9 (W.D. Pa. 2014). In any event, the courts seem to have prioritized the DOL’s requirements over the statute's language by implying that an employee can be medically but not legally inpatient. That distinction far exceeds the ability of an ordinary, reasonable employee to understand, especially one who is likely to be in pain if not crisis at the time.
Maybe the problem is an overlooked Chevron issue. The District Court rejected the hospital designation because “inpatient care is defined in the regulations as an overnight stay, meaning a plaintiff must stay overnight to qualify as receiving inpatient care.” Yet the statute speaks of “inpatient” and it’s the regulations that add the “overnight” criterion. Arguably, when a hospital decides that a patient requires inpatient care, that should suffice to establish the severity of her condition, even if she was admitted a few minutes after midnight.
And then there’s the emergency room question. By speaking of “inpatient” care, the FMLA makes clear that a trip to the ER doesn’t suffice. But suppose a patient spends three or four hours in the ER and is then admitted inpatient. Does it follow that the time before formal admission is irrelevant to the question of coverage, or even to the question of what counts as overnight?
The bottom line is that employees should be able to discern whether or not they have FMLA coverage. For now, we’ll have to wait and see how the calendar day rule plays out.
Thanks to my research assistant, Samira Paydar, for her help on this.