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Record retention is complex and time consuming. However, in addition to complying with various federal and state laws, keeping good, well-organized records can be very helpful in documenting and supporting an organization’s employment actions.
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This special report will discuss how you can ensure your records are in good order, and establish a record-retention policy.

Topics covered:
1. Hiring Records
2. Employment Relationships
3. Termination Records
4. Litigation Issues
5. Electronic Information Issues
6. Tips for Better Recordkeeping
7. A List of Legal Requirements

Make sure you have the information you need to know to keep your records in order.

January 05, 2004
The Three Days of FMLA

To qualify for leave under the Family and Medical Leave Act (FMLA), an individual must meet one of the defined qualifying situations. One such situation requires a serious health condition that incapacitates an employee for "more than three calendar days," along with subsequent treatment for the condition. Just what "more than three calendar days" means has long been an issue for FMLA administrators. One court recently tackled this issue and settled it—for now, at least.

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Margaret Russell worked for North Broward Hospital as a Patient Accounts Adjustment Representative. She had been disciplined for three unscheduled absences. Per the Hospital's policy, Russell risked termination for further absenteeism. On May 31, 2000, Russell slipped and fell at work. She had fractured her right elbow and an ankle, as well as aggravating an existing wrist injury. Russell's physician prescribed pain medication, and certified that she was able to return to work with restrictions on using her right arm. Over the next ten days, Russell's attendance at work was spotty, due to what she called "excruciating pain." Several times she reported to work in the morning, only to feel too ill to stay the full day. Some of her absences were excused; some were not. On June 12, Russell was terminated for excessive absenteeism.

Russell filed suit against the Hospital, claiming that her right to take FMLA leave for a serious health condition had been violated. Among other qualifying events, the FMLA provides that an eligible employee is entitled to 12 weeks of leave in a 12-month period for a serious health condition that involves a "period of incapacity…of more than three consecutive calendar days." Russell claimed that her situation met this definition, and that the Hospital had violated her FMLA rights by terminating her instead of providing her with FMLA leave.

Russell argued that she had been incapacitated from May 31 to June 6, and that that fact satisfied the FMLA's three-day requirement. She did not claim that she was at any point incapacitated for three consecutive full days or more; rather, she argued that partial days of incapacity were enough to satisfy the FMLA's requirement. The U.S. Court of Appeals for the 11th Circuit was faced with deciding a new question—whether consecutive partial days of incapacity count towards the FMLA's requirement.

The court looked to the plain language of the statute—and to a dictionary—to decide this question. The FMLA states that "a period of incapacity…of more than three consecutive calendar days" is needed to qualify for leave under the relevant portion of the statute. The court looked at the definitions of "period" and "calendar day," as defined by Random House Unabridged Dictionary (2d ed. 1993). According to the relevant definitions, a "period" is "any specified division or portion of time," and a "calendar day" is "the period from one midnight to the following midnight." Thus, the court concluded, a "calendar day" refers to a whole day, not just a part of a day, meaning that the statute requires more than three full calendar days of incapacity to qualify for FMLA leave under this part of the law.

In addition, the court felt that this interpretation met with Congress' intentions in drafting the law. Requiring three full days of incapacity, reasoned the court, would ensure that qualifying serious health conditions were indeed serious, as Congress intended. If partial days were allowed, said the court, how much incapacity would qualify? Fifteen minutes each day? Five hours? The court noted that adopting such an interpretation of the law would lead to mayhem and confusion for employers left to administer this law. Thus, ruled the court, Russell did not have a serious health condition as defined by the statute, and therefore her termination did not violate the FMLA (Russell v. North Broward Hosp. (11th Cir. 2003)).

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