Can Coughing Cook Fired During Leave Assert FMLA Interference Claim?

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A case involving a Brooklyn cook who was hopefully not coughing into the soup before he took time off for bronchitis asks the question, how serious does an illness have to be for an employee to seek FMLA leave?

Around Oct. 29, 2023, the cook asked permission to leave work because he felt sick. It was not his own cooking that did it, apparently, but early stage bronchitis. On October 30, he asked for time off because the condition had worsened. That, he said, was when his employer knew he was requesting FMLA leave. The restaurant granted him time off but never mentioned his FMLA rights.

The cook was incapacitated for "a period of more than three days" and required "ongoing medical attention,” according to his lawsuit. He finally saw a doctor on November 8–his only appointment between October 30 and November 30–which is when he received the diagnosis of early-stage bronchitis. That same day, he told the restaurant about the diagnosis and said he intended to return to work November 11 after two additional days of recovery. 

Instead of waiting for him, the restaurant told him on November 8 that it had replaced him and he was fired.

The employee sued the company for FMLA interference.

To state a claim for interference with FMLA rights, a plaintiff must establish: 1) that he is an eligible employee under the FMLA; 2) that the defendant is an employer as defined by the FMLA; 3) that he was entitled to take leave under the FMLA; 4) that he gave notice to the employer of his intention to take leave; and 5) that he was denied benefits to which he was entitled under the FMLA

To be qualified for FMLA, an employee must have a “serious health condition.” A serious health condition is an illness, injury, impairment, or physical or mental health condition that involves inpatient care or continuing treatment by a health care provider. Continuing treatment means:

1. Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a healthcare provider; or
2. Treatment by a healthcare provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.

Was the cook entitled to take FMLA leave?

A. No. He only had one doctor appointment prior to Nov. 30 and he wasn’t under a continuing treatment regimen.

B. Yes. His employer fired him after he told the employer he was sick.

If you selected A, you agreed with the court in Guevara v. A&P Restaurant Corp., No.  24-cv-522 (NSR) (S.D.N.Y. 01/22/25), which held that the cook had no right to FMLA leave for his bronchitis.

The court noted that the employee’s early-stage bronchitis did not fit either of the FMLA’s possible definitions of a serious health condition. 

As for the first definition – treatment two or more times within 30 days of the first day of incapacity – the employee first became incapacitated on October 29. He had a medical appointment 8 days later, but that was his only appointment for the condition during the 30-day period. Further, he did not argue that there were any special circumstances that would justify having just one medical appointment.

As to the second definition, there was no evidence that the cook was placed on a continuing regimen of treatment under a healthcare provider’s supervision.

“Even liberally construed, the Complaint's allegations undergirding Plaintiff's early-stage bronchitis do not give rise to a ‘serious health condition’ as needed in order to state a FMLA claim,” the court wrote, dismissing the case.

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