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Lusk v. Virginia Panel Corporation

United States District Court, W.D. Virginia, Harrisonburg Division

April 4, 2014

LESLIE FAYE LUSK, Plaintiff,
v.
VIRGINIA PANEL CORPORATION, Defendant.

MEMORANDUM OPINION

MICHAEL F. URBANSKI, District Judge.

Following the hearing conducted on March 26, 2014, the court granted in part and denied in part plaintiff Leslie Faye Lusk's motion for partial summary judgment, and took the issue of whether Lusk's alleged mental health problems constituted a "chronic serious health condition" pursuant to 29 C.F.R. § 825.115(c) under advisement.[1] For the reasons stated herein, Lusk's motion for partial summary judgment is DENIED as to this issue.

Lusk argues that she suffers from a chronic serious health condition as a matter of law under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq. A chronic serious health condition is defined as follows:

Chronic condition. Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:
(1) Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider;
(2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and
(3) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).

29 C.F.R. § 825.115(c). However, Lusk asserts that defendant Virginia Panel Corporation's ("VPC") policies as set forth in the employee manual govern the definition of chronic serious health condition, instead of the regulations promulgated by the Department of Labor related to the FMLA. The VPC employee manual defines a chronic serious health condition, as follows:

A chronic serious health condition is one which:
(1) Requires periodic visits with a health care provider;
(2) Continues over an extended period of time; and
(3) Causes occasional rather than continuous periods of incapacity (e.g. asthma, diabetes, epilepsy, etc.)

Dkt. No. 42-3, at 27.[2] As Lusk points out in her brief, the VPC policies are "more generous, in that they reference only periodic visits' and do not require a specific number." Pl's. Mot. Summ. J., Dkt. No. 42, at 16. Lusk cites 29 C.F.R. § 700 ("An employer must observe any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA") in support of her contention that VPC's policies govern the definition of chronic serious health condition, and not the regulations promulgated by the Department of Labor.

Case law does not support this contention. Courts have interpreted 29 C.F.R. § 825.700 as not creating a federal cause of action under the FMLA to enforce voluntary employer policies which provide benefits exceeding those required by the FMLA. Rich v. Delta Airlines , 921 F.Supp. 767, 773 (N.D.Ga. 1996) ("Section 825.700 does not, and could not, however, create a federal cause of action under the FMLA to enforce the voluntary employer policies of providing benefits that exceed those required by the FMLA. The Department of Labor has no ...


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