Most employees who demonstrate a serious health condition under the Family and Medical Leave Act do so under the "absence plus treatment"  definition. In many cases, the course of continuing treatment involves a regimen of prescription drug use. However, as pointed out last month by the Seventh Circuit Court of Appeals, the existence of a serious health condition does not mean that every absence related to the prescription drug use is FMLA-protected.

In Jones v. C&D Techs., Inc., the plaintiff had several pain and anxiety-related conditions that resulted in periodic doctor visits and prescription drug use. As a result of non-FMLA absences, he was on the verge of termination. He missed work an additional day to stop by the doctor's office to pick up a prescription refill note, and was terminated for excessive absenteeism. He sued, alleging interference with his FMLA rights.

The Seventh Circuit affirmed summary judgment for the employer. In its opinion, the court noted that the question here was not whether the plaintiff had a qualifying serious health condition under the FMLA. Instead, the Seventh Circuit analyzed whether the specific absence that resulted in termination was FMLA-protected. For the absence to meet this qualification, the plaintiff must have either been incapacitated from working, or missed work to receive treatment for the serious health condition. The plaintiff contended that obtaining the prescription refill constituted FMLA treatment. The court disagreed, analyzing the Department of Labor's FMLA regulations. While the prescription drug use was part of the plaintiff's course of treatment, he was not receiving any sort of examination or medical procedure that related to an inability to perform his work.

These cases are very fact specific, and depend on a careful reading of the applicable FMLA rules. However, not every absence from work that is arguably related to a serious health condition is FMLA protected. Employers may be able to distinguish between such qualifying absences and time away from work for reasons that can be treated under the regular absenteeism policy.