Legal Question in Medical Leave in Maryland

Re: Doctors appointments and fmla

There is no easy answer here. I will give you the argument to make, but first some practical advice. You must avoid disrupting the workplace if you can. Try to schedule the allergy shots before or after work. If not possible, and the employer refuses to grant FMLA, then offer other options such as extended lunches for the appointments and making up the time when you return. Be reasonable and flexible, and maybe the employer will do the same. (And make your case to upper management if need be.)

As for the law, the HR person is right that only "serious health conditions" are covered, but the definition is complicated. Certainly, if the underlying condition is very serious, such as asthma, then your argument is stronger and you are most likely covered by the law. If not, it is a tougher case to make.

The Department of Labor regulations which interpret the FMLA state that you can take FMLA leave for a serious health condition including a physical condition which involves "continuing treatment by a health care provider."

This includes "any period of incapacity or treatment for such incapacity due to a chronic serious health condition" such as one that: requires periodic visits for treatment; continues over an extended period of time; and may cause episodic rather than a continuing period of incapacity (e.g., asthma).

A period of incapacity includes the inability to work from the condition or its treatment.

Periodic allergy shots arguably fall within these terms (periodic treatment over a long term, etc.), but it is the "period of incapacity" that is problematic. It is not defined in the regs, but mentioned in a parenthetical to one of the sections which talks about incapacity for 3 or more days. In short, most of the regs are based on conditions which cause 3 or more days of incapacity.

If your original condition which led to the allergy shots had such an effect (3-day incapacity), or would if you did not take the shots, your argument is stronger. If not, it is unclear whether the law protects you.

So, you should make the argument to HR and see what they say. Point them to the regulations at section 825.114(a)(2)(iii), and (a)(2)(i) for the defintion of incapacity in the parentheses.

If you need to discuss this or hire an attorney, please call. I am always glad to offer a complimentary consultation so you can decide how to proceed.

Good luck.

Jeff Sheldon

Jeffrey L. Sheldon, Esquire

The Sheldon Law Firm

17804 St. Lucia Isle Drive

Tampa, FL 33647

813.986.7580

(f) 813.986.7489

(Admitted in Fl., MD, D.C., and Pa.)

[email protected]

http://www.SheldonLawFirm.com

Disclaimer: This posting does not and is not intended to constitute legal advice. It is not confidential, nor is it privileged, and it does not create an attorney-client relationship. Please consult with an attorney for advice specific to the facts of your case.