No FMLA for Pet’s Death

By Fiona W. Ong - Shawe Rosenthal LLP

March 16, 2018

In a previous post about pet bereavement leave, I noted that the Family and Medical Leave Act does not provide leave to care for an ill or dying pet. (Because a pet is not technically a family member. Really. Despite how we pet-owners feel about our fur babies. That’s mine in the picture.) But I also said that, “if an employee becomes depressed because of the death of a pet, it is possible that this could rise to the level of a disability that would require a reasonable accommodation under the Americans with Disabilities Act, or a serious health condition for which leave must be granted under the [Family and Medical Leave Act].” I further noted, however, that most people may experience grief but not become clinically depressed as the result of a pet’s death. So my interest was piqued by a recent case in which the employee claimed that his insomnia following his dog’s death was a serious health condition under the FMLA.

In Buck v. Mercury Marine, the employee had to put down his dog over the weekend. On Monday, he took a vacation day without telling his supervisor how upset he was about his pet’s death. On Tuesday, he left a message for his supervisor, asking for a call back and stating that he was having a really hard time with his dog. In a follow up call, the employee supposedly told his supervisor that he was unable to sleep because of the dog’s death and that he would not be able to work that day. The employee worked on Wednesday, and after work he went to a clinic where he was seen by a nurse, who gave him a sleeping pill and a note that said: “This is to certify that Joseph was seen in the clinic on 5/29/2014. Please excuse Joseph from missed work May 28th. REMARK: Please excuse missed work on May 28th. Joe was in the clinic for evaluation of situational insomnia. Treatment has been initiated.”

The employee’s absence was counted as an occurrence under the attendance policy and led, in part, to his eventual termination for poor attendance. In his subsequent lawsuit, the employee claimed that his May 28 absence should have been covered by FMLA, that he should have been told by the employer that it was FMLA-covered, that the absence should not have been counted against him under the attendance policy, and that he therefore should not have been fired.

The court found, however, that the employee did not have a “serious health condition” under the FMLA. In order to qualify as a “serious health condition,” the condition must involve either (1) incapacity for more than three consecutive full calendar days with treatment by a health care provider at least twice in 30 days, or (2) a chronic condition requiring visits to a health care provider at least twice a year. The court acknowledged that insomnia that met either of these standards would qualify as a “serious health condition,” the employee’s particular insomnia did not. At most, he missed only two consecutive days of work, and there was no indication of follow up treatment by a health care provider.

The court also found that the employer had no obligation to give the employee information about FMLA because the employee had not provided sufficient information for the employer to realize that FMLA could apply. The employee told his supervisor he was upset over the death of his dog and had not slept for days. The note from the nurse indicated only that the employee had been evaluated for situational insomnia and treatment had begun. But the court noted that, under the controlling law in the jurisdiction, the employee must first notify the employer of the seriousness of the health condition, and “[e]ven a doctor’s note is insufficient if the note does not convey the seriousness of [the plaintiff’s] medical condition.” (internal quotations omitted). The information from the employee here did not meet this standard.

This case provides a good reminder that not all health conditions will trigger the FMLA. Even under sad circumstances. RIP, Rover.