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Appeals Court Rules for Employee Fired in AT&T FMLA Case

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A former CWA member’s court victory in a groundbreaking Family and Medical Leave Act case makes it clear that doctors, not employers, have the authority to decide what constitutes a serious health condition.

Kimberly Miller, who belonged to CWA Local 2001 in West Virginia, was fired from her customer service job at AT&T in 1997 after an acute case of the flu kept her out of work for three days following a series of other medical problems.

Although the FMLA doesn’t list the flu as a “serious health condition,” Miller’s illness was so severe she needed intravenous fluids. In a 2-1 decision this month, a panel of federal judges with the Fourth Circuit Court of Appeals ruled that Miller met FMLA criteria, upholding an earlier District Court decision.

“It’s a reminder to employers that they can’t second-guess doctors when they say someone has a serious health condition,” said CWA lawyer Mary O’Melveny, who filed a brief in support of Miller’s case. “She had a very serious kind of flu and her doctor filled out all the paperwork correctly. But the employer decided that flu shouldn’t be covered and said, ‘We’re denying you.’”

AT&T had the right to challenge the doctor’s findings by requiring Miller to get a second opinion, and paying for it, but the company didn’t do so, O’Melveny said.

Miller’s doctor testified in a deposition that Miller’s flu was so bad it was attacking her bone marrow and said, while rare, such extreme cases of flu can cause death.

AT&T is likely to ask the full Fourth Circuit court to review the decision and could appeal to the U.S. Supreme Court.

The company has been ordered to pay Miller’s back wages and attorney’s fees. Miller returned to school after being fired and now works as a medical technician.

“It’s a clear-cut victory for employees,” Miller’s lawyer, Lonnie Simmons said. “When the Department of Labor established FMLA, they realized they couldn’t list everything that might be a serious health condition. But they created regulations for an objective test — such as multiple visits to a physician, three or more days’ absence from work — and Kimberly Miller met that test."