Does a broken toe amount to a serious health condition under the Family and Medical Leave Act (FMLA)? According to the U.S. District Court for the Southern District of Ohio, it depends on the circumstances. The Southern District recently held that an employee’s FMLA interference claim can go to trial after there was a dispute as to whether his broken toe constituted a serious health condition and whether he provided sufficient notice to the employer of his need for FMLA leave.

The employee worked for the employer as a metal polisher. The job duties required him to stand for lengthy periods of time and to walk around the production floor to pick up materials. Work boots were required to be worn for this position. The employer has a point-based attendance policy. Employees that fail to call in to notify the employer they would miss work prior to their shift are issued two attendance points. Consecutive absences for the same reason result in one point. Once an employee accumulates nine points in a year, his employment is terminated. Employees are not required to give a reason for an absence when calling in, but if they choose to do so the employer will summarize it in the attendance record.

On March 1, 2019, the employee fractured his fifth toe at home. He called on the following day and left a message that he broke his toe, for which he was issued an attendance point. The employee called in on March 4 reporting his toe was still “messed up” and he could not get his work boot on his foot. The employee called off work again on March 5, stating he could not work because of his broken toe. The employer’s notes stated the employee gave no reason for calling off work and issued him another attendance point.

On March 5, the employee saw his primary care provider, nurse practitioner Dawne Macke. Nurse Macke instructed the employee to wear a post-operation shoe to relieve pain and correct the position of his toe, and to stay off his foot as much as possible. Nurse Macke issued the employee a note excusing him from work from March 2 through March 10. The note did not state why the employee needed to miss work, but the stationary included a telephone number to call with any questions. The employee gave this note to the employer.

The employee was still experiencing pain in his toe on March 11. He called in, stating he still could not wear his work boot because of his toe. The employer issued the employee two attendance points for a no call/no show. The employee called off work again the next day. He informed the employer he could not put his shoe on and he was issued one attendance point. Nurse Macke’s office sent a fax to the employer on March 13, stating the employee was under her care from March 2 through March 18, and he could return to work on March 19.

On March 19 , the employee reported he still could not work due to pain, could not wear his work boot and could not stand to perform his duties. The employee received an x-ray on his foot that day, which showed his toe was fractured. The employer issued the employee two attendance points for March 19, claiming he was a no call/no show. The employee left another message on March 20 that he could not work because of his broken toe. Nurse Macke’s office faxed a note to the employer that day, excusing the employee from work until March 25 and notifying the employer to call if they had any questions. The employee was issued one attendance point for March 20. When employee returned to work on March 25 he was informed he had been terminated for attendance.

The employee claimed his termination interfered with his rights to use FMLA leave. The employer argued that a broken toe does not amount to a serious health condition, claiming there was no evidence the employee was incapacitated more than three days, he did not receive continuing treatment and there was no medical assessment that his toe prevented him from working. But the District Court found that a reasonable jury could conclude, based on the available evidence of employee’s medical appointments, notes from Nurse Macke and reasons given when calling off work, the employee’s broken toe was a serious health condition under the FMLA. The court also noted that if the employer did not believe it had enough information regarding the employee’s condition, they could have called Nurse Macke’s office to receive additional information or could have asked for a medical certification. The employer failed to do so.

The court further held that the issue of notice could go to the jury. While the employer claimed the employee did not provide sufficient notice, the employee testified he left his employer voicemails stating he had a broken toe, that he was in pain and that he could not stand or work. The employee also provided the employer with medical notes covering his absences from March 2 to March 24, 2019.

So, what does this mean for employers?

Remember, employees do not have to specifically ask for FMLA leave to be entitled to the leave. If there is a question whether an employee’s condition may qualify for FMLA leave, it is the safest course of action to provide the employee with FMLA paperwork and evaluate whether the leave would qualify. You can always ask for clarification or additional information if needed to make a decision. Had the employer done so here, they may have avoided costly litigation.

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Photo of Jourdan Day Jourdan Day

Jourdan is a senior associate in the firm’s Labor and Employment Department, practicing in a wide variety of labor and employment law areas. She has experience defending discrimination and retaliation charges filed with the Equal Employment Opportunity Commission and the Ohio Civil Rights Commission.