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Eight Hours to be an FMLA “Overnight” Success

How long must an employee be in the hospital to satisfy the “overnight stay” requirement of the FMLA?  “[F]or a substantial period of time from one calendar day to the next calendar day as measured by the individual’s time of admission and time of discharge,” according to the Third Circuit Court of Appeals.  Bonkowski v. Oberg Industries, Inc. (3rd Cir. May 22, 2015). At least eight hours would meet the “substantial period” requirement, the Court added.

The FMLA defines a “serious health condition” as an “an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” Section 825.114 of the DOL’s regulations defines “inpatient care” as “an overnight stay in a hospital, hospice, or residential medical care facility…”   “Overnight” is not defined in the law or regulations.

The plaintiff had arrived at the hospital shortly before midnight, was admitted to the hospital shortly after midnight and was discharged the evening of the same day he was admitted.

The district court held that an employee must be in the hospital from sunset on one day to sunrise the next to meet the “overnight stay” requirement. Since the plaintiff did not meet this test, he did not have an “overnight” stay, according to the district court. The Third Circuit rejected this approach because sunset-sunrise times vary through the year and by geographic location. The court noted that in Fairbanks, Alaska, the time from sunset to sunrise could vary from less than three hours to more than twenty hours, depending on the time of year. Nonetheless, the Court affirmed summary judgment for the employer because the plaintiff “did not stay in the hospital from one calendar day to the next calendar day as measured by his time of admission and time of discharge.”

The Court also rejected the “totality of the circumstances” approach, although the dissenting judge espoused this view. The dissent cited studies to establish that various factors affect the time of a hospital admission, including the wait time to see a physician, the day of the week the individual comes to the hospital and transportation issues that affect arrival time at the hospital.  The “totality” approach “offers a practical and more equitable inquiry into an employee’s hospital experience,” according to the dissent.

Jackson Lewis P.C. © 2022National Law Review, Volume V, Number 145
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About this Author

Michael Soltis, Jackson Lewis Law Firm, Disability and Health Management Attorney
Office Managing Principal and Office Litigation Manager Stamford

Michael J. Soltis is Office Managing Principal and Litigation Manager of the Stamford, Connecticut, office of Jackson Lewis P.C. He has represented employers in a wide range of employment and labor matters for more than 30 years.

Mr. Soltis has advised on and litigated matters involving just about every type of employment claim, including discrimination claims, family and medical leave claims, public policy and whistleblower claims, contract claims, and common law employment claims. He has litigated cases in state court and...

203-961-0404
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