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Counting used to be so simple back in grade school: one, two, three — and so on. And back in kindergarten, everyone knew that three didn’t mean two and one-half or two and seven-eighths: it meant three. But lawyers — or more accurately, plaintiffs — sometimes forget these simple counting lessons. So it was in the recent case of Russell v. North Broward Hosp., where the 11th Circuit went “back to basics” in counting to three under the Family and Medical Leave Act. INJURED WRIST BUT STILL WORKING Margaret Russell was hired as a patient accounts representative at North Broward Hospital in Pompano Beach, Fla., in June 1996. By mid-January 2000 she was on the precipice of termination after having been disciplined three times for excessive absenteeism. Under the hospital’s progressive discipline system, her next absence could be her last for the hospital. On May 31, 2000, Russell slipped and fell at work. She fractured both her elbow and ankle and aggravated a pre-existing wrist injury. The doctor who treated Russell said that she could return to work, but should restrict the use of her right arm. Russell returned to work the next day, but left a few hours into her shift because she was experiencing “severe pain.” She returned to her doctor and then called her supervisor to tell her that she would not be back at work and to ask for the next day off. Her supervisor refused to grant her an excused absence for the next day. Having taken the threat of termination to heart, Russell again returned to work the next day, but left again just an hour into her shift. The hospital’s workers’ compensation agent arranged for Russell to see an orthopedist the following Monday. After a weekend of more “excruciating pain,” Russell went to the orthopedist as scheduled. The doctor told her she could work, but, again, that she should not use her right arm. Russell went to work after the appointment. RUSSELL FIRED FOR ABSENTEEISM Russell worked intermittently for the remainder of the week, working a full day only once. The following Monday, Russell was called into her supervisor’s office and told to go home to await a call from the human resources department. She came in to meet with her supervisor and HR the following day and was terminated for excessive absenteeism. RUSSELL CLAIMS THAT THREE PARTIAL DAYS COUNTS Russell brought suit under the FMLA, claiming that she had been retaliated against for exercising her rights under the act. The case went to trial on the FMLA claim and the jury returned a verdict in favor of the hospital. Russell appealed to the 11th Circuit. The specific issue on appeal was the district court’s instruction to the jury that a “serious health condition” under the FMLA required an incapacity of “three consecutive calendar days, 72 hours or more.” Russell’s principal argument on appeal was that the district court should have granted her judgment as a matter of law because no reasonable jury could have found that she did not meet the requirement of incapacity for three consecutive days. She argued that she established seven consecutive partial days of incapacity which satisfy the regulatory definition’s requirements. The appellate court initially reviewed the FMLA’s language defining a “serious health condition” which involves either (a) inpatient care or (b) continuing treatment by a health care provider. The latter category requires, under the regulations, “a period of incapacity � of more than three consecutive calendar days. � “ THREE DAYS MEANS THREE “FULL” DAYS Russell did not argue that she was ever incapacitated for three consecutive full days. Instead, she contended that “partial days of incapacity are enough to satisfy the regulation.” The court found that Russell did not cite to any cases or administrative interpretation to support her counting theory. Because this was a matter of first impression among federal appellate courts, the 11th Circuit found guidance in the dictionary for the plain meaning of a “calendar day.” That is: “the period from one midnight to the following midnight.” Based upon Webster’s (with Black’s Law Dictionary also cited for a more “legal” touch), the court found that a “calendar day” under the FMLA “refers to a whole day, not to part of a day, and it takes some fraction more than three whole days in a row to constitute the ‘period of incapacity’ required under the [regulations to the Act].” The court also found a practical justification for applying the law with a bright line test. Under Russell’s theory, “courts and juries would continually confront confounding issues about how much incapacity on a given day is enough for that day to count toward the regulatory requirement. Are five hours enough? Fifty minutes? Fifteen minutes? Five minutes? Does it depend on the circumstances? If so, how so?” The court neglected to note perhaps the most important arbiters of “three days”: employers and employees. The goal of the statute and regulations is for those using the FMLA to have consistency and (relative) ease of use. While it may be surprising that it has taken over 10 years for an employee to claim that partial days should count under the act, had the court adopted this reasoning, it would have likely taken another 10 minutes for employees to start showing up on their employer’s doorstep seeking FMLA leave for increasingly small segments of lost work time. The decision in Russell stopped those claims at the gate. Sidney R. Steinberg is a shareholder in the business law and litigation department of Post & Schell, (www.postschell.com). He concentrates his national litigation and consulting practice in the field of employment and employee relations law and may be reached at [email protected].

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