PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 14-1239

_______________

JEFFREY BONKOWSKI,

 Appellant

v.

OBERG INDUSTRIES, INC.

_______________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 2-12-cv-00812)

District Judge: Hon. Joy Flowers Conti

_______________

Argued October 23, 2014

BEFORE: FUENTES, GREENBERG AND COWEN, Circuit 

Judges

(Filed: May 22, 2015)

_______________
2

OPINION OF THE COURT

_______________

Tiffany R. Waskowicz, Esq. (Argued)

Joshua M. Bloom & Associates

310 Grant Street, Suite 3204

Pittsburgh, PA 15219

Counsel for Appellant

Paul S. Mazeski, Esq.

Erin J. McLaughlin, Esq. (Argued)

Buchanan Ingersoll & Rooney

301 Grant Street

One Oxford Centre, 20th Floor

Pittsburgh, PA 15219

Counsel for Appellee

COWEN, Circuit Judge.

Plaintiff Jeffrey Bonkowski appeals from the order of 

the United States District Court for the Western District of 

Pennsylvania granting the summary judgment motion filed by 

Defendant Oberg Industries, Inc. (“Oberg”) with respect to his 

claims under the Family and Medical Leave Act (“FMLA”). 

In this appeal, the Court must interpret a Department of Labor 

(“DOL”) regulation—which states in relevant part that 

“[i]npatient care means an overnight stay in a hospital, 

hospice, or residential medical care facility.” We conclude 
3

that “an overnight stay” means a stay in a hospital, hospice, or 

residential medical care facility for a substantial period of time 

from one calendar day to the next calendar day as measured by 

the individual’s time of admission and his or her time of 

discharge. Because Bonkowski was admitted and discharged 

on the same calendar day, we will affirm the District Court’s 

order.

I.

Bonkowski worked for Oberg (a manufacturer of 

precision components and tooling) as a wirecut operator and 

machinist. He has a number of health conditions, including an 

aortic bicuspid (i.e., he has two heart valves as opposed to 

three) and diabetes. He was diagnosed with a possible aortic 

aneurysm after he fainted in the woods in May 2010. In 

addition, Bonkowski’s colon was removed.

 

On November 14, 2011, Bonkowski met with two 

supervisors (David Santi and Jeffrey Ambrose) in order to 

discuss his recent suspension for allegedly sleeping on the job. 

According to Bonkowski, he began to experience shortness of 

breath, chest pain, and dizziness, and Santi and Ambrose gave 

him permission to go home and continue their meeting the 

next day. He clocked out at 5:18 p.m. and went home to try to 

slow down his breathing and heart rate. Lisa Bonkowski 

testified at her deposition that her husband looked as “white as 

a ghost” and was clutching his chest. (A345.) Over the next

few hours, Bonkowski unsuccessfully tried to slow down his 

heartbeat and catch his breath. 

Shortly after 11 p.m., Bonkowski’s wife drove him to 
4

Butler Memorial Hospital. It appears that the couple arrived at 

the hospital shortly before midnight. At his deposition, 

Bonkowski stated that “I just know that I arrived earlier, I 

remember just—when they were wheeling me in, I see a clock 

right in front of me and it was a few minutes before 12:00.” 

(A279.) He was then admitted shortly after midnight on 

November 15, 2011.

Bonkowski underwent comprehensive testing at the 

hospital. His wife was initially informed that he may need 

open heart surgery. However, the tests did not find any 

complications with his heart condition or diabetes. Bonkowski 

accordingly was released from Butler Memorial Hospital in 

the early evening hours of November 15, 2011. He obtained a 

doctor’s note stating that “Jeff was hospitalized and is excused 

from work.” (A361.) When he was discharged from the 

hospital, Bonkowski was instructed to follow up with his 

primary care physician and cardiologist and to schedule an 

outpatient echocardiogram. However, no restrictions were 

placed on his activities.

The record includes two documents from Butler 

Memorial Hospital: (1) the “Discharged Inpatient Report” 

(A353-A359); and (2) the “Discharge Instructions” (A363). 

Summarizing the test results, the Discharged Inpatient Report 

identified the date of “Reg” as “11/15/11” and the date of 

“Disch.” as “11/15/11.” (A353-A359.) Likewise, the 

Discharge Instructions indicated that “11/15/11” was the 

“ADM-DT” and that Bonkowski was discharged on 

“11/15/11.” (A363.)

On November 16, 2011, Lou Proviano, the head of 
5

Oberg’s human resources department, notified Bonkowski that 

his employment was terminated because he had walked off the 

job on November 14, 2011. In his subsequent deposition 

testimony, Proviano characterized Bonkowski’s time in the 

hospital as an “overnight situation.” (See A292 (“It was a 

voicemail—it was a voicemail message that indicated that she 

was trying to get FMLA documentation from Jeff Ambrose, 

and the overnight situation usually doesn’t warrant an FMLA 

document at the time.”).)

Bonkowski filed the current FMLA action against 

Oberg. He alleged two causes of action under the FMLA: (1) 

Oberg retaliated against him for exercising his FMLA rights; 

and (2) Oberg interfered with his FMLA rights.

 

After the parties completed discovery, Oberg filed a 

motion for summary judgment. In a January 17, 2014 order, 

the District Court granted Oberg’s motion, entering judgment 

in favor of Oberg and against Bonkowski. In its 

accompanying memorandum opinion, the District Court 

determined that “no reasonable jury could find that plaintiff’s 

absence from work on November 15, 2011, was a qualifying 

absence under the FMLA entitling him to protection from 

Defendant’s interference or retaliation with his FMLA rights.” 

Bonkowski v. Oberg Indus., Inc., 992 F. Supp. 2d 501, 512 

(W.D. Pa. 2014). In short, it rejected Bonkowski’s retaliation 

and interference claims because he did not have a “serious 

health condition” under 29 U.S.C. § 2611(11)(A), i.e., “an 

illness, injury, impairment, or physical condition that involves 

(A) inpatient care in a hospital, hospice, or residential medical 

care facility,” and therefore was not entitled to leave under the 
6

FMLA.

 

Specifically, the District Court was required to interpret 

29 C.F.R. § 825.114, which defines the terms “inpatient care” 

as “an overnight stay in a hospital, hospice, or residential 

medical facility, including any period of incapacity as defined 

in 29 C.F.R. § 825.113(b), or any subsequent treatment in 

connection with such inpatient care.” Oberg asserted that “‘an 

overnight stay in a hospital’ means a stay in a hospital from 

‘one day to the next, measured by the inpatient’s date of 

admission and discharge.’” Bonkowski, 992 F. Supp. 2d at 

510 (citation omitted). According to the District Court, 

“Plaintiff argues that he stayed overnight at the hospital from 

November 14, 2011, to November 15, 2011, because he 

arrived at the hospital shortly before midnight and was 

discharged in the early evening of the following day.” Id.

(footnote omitted). Finding that the arguments offered by both 

sides were not sufficient to resolve this issue (and noting that 

neither the FMLA nor the DOL regulations define the term 

“overnight”), the District Court turned to dictionary definitions 

of “overnight,” “duration,” and “night” (as well as the 

definition of “night” adopted by the Federal Aviation 

Administration (“FAA”)) to discern the ordinary meaning of § 

825.114’s “overnight stay” terminology.

The District Court ruled that “Plaintiff can establish he 

had a qualifying serious medical condition only if he is able to 

establish he spent the entire ‘night’ as an inpatient at the 

hospital’” and that “an ‘overnight stay’ at a hospital is a stay 

from sunset on one day to sunrise the next day.” Id. at 511. 

Taking judicial notice of the sunset and sunrise times set out in 
7

The Old Farmer’s Almanac, the District Court ascertained 

that, based on Butler Memorial Hospital’s zip code, the sun set 

at 5:02 p.m. on November 14, 2011 and rose at 7:07 a.m. on 

November 15, 2011. According to the District Court, 

Bonkowski was required to “put forth evidence that he was in 

the hospital from November 14, 2011, at 5:02 p.m. until 

November 15, 2011, at 7:07 a.m. to show his condition 

qualified as a serious medical condition under the FMLA.” Id. 

He failed to do so:

The undisputed evidence in this case is that 

Plaintiff arrived at Butler Memorial Hospital 

shortly before midnight on November 14, 2011. 

He was admitted as an inpatient shortly after 

midnight on November 15, 2011. He remained 

at the hospital as an inpatient until the evening 

of November 15, 2011. The undisputed 

evidence of record shows that plaintiff did not 

stay overnight as an inpatient in the hospital 

because he did not arrive at the hospital until 

shortly before midnight on November 14, 2011, 

almost seven hours after the sun set that day. 

Plaintiff, therefore, failed to show that he spent 

the duration of the night at Butler Memorial 

Hospital. . . 

Id. at 511-12 (citations omitted).

The District Court found it unnecessary to follow the 

rationale of the Second Circuit’s ruling in Estate of Landers v. 

Leavitt, 545 F.3d 98 (2d Cir. 2008), and thereby conclude that 
8

“Plaintiff’s arrival at Butler Memorial Hospital did not begin 

his inpatient stay; rather, plaintiff became an inpatient when he 

was formally admitted after midnight.” Bonkowski, 992 F. 

Supp. 2d at 510 n.10. “Based upon the plain meaning of the 

word ‘overnight,’ even considering the time prior to plaintiff’s 

formal admission, he did not stay overnight at the hospital.” 

Id.

 

The District Court likewise considered Bonkowski’s 

argument that he stayed overnight at the hospital because 

Butler Memorial Hospital designated him as an inpatient (and 

because The Free Dictionary defines an “inpatient” as “‘[a] 

patient who is admitted to a hospital or clinic for treatment that 

requires at least one overnight stay,’” id. at 509 n.9 (quoting 

The Free Dictionary, 

http://www.thefreedictionary.com/inpatient (last visited Jan. 

16, 2014))). According to the District Court, his argument 

lacked merit because “inpatient care” is defined by the 

regulations as “an overnight stay, meaning a plaintiff must 

stay overnight to qualify as receiving in-patient care.” Id. 

Butler Memorial Hospital’s designation at best meant that his 

condition required one overnight stay. It “does not mean that 

plaintiff actually stayed overnight at the hospital, i.e., that he 

received inpatient care and is qualified for protection under the 

FMLA.” Id.

II.

Congress enacted the FMLA in 1993 to address 

problems associated with “inadequate job security for 

employees who have serious health conditions that prevent 
9

them from working for temporary periods.”1 29 U.S.C. § 

2601(a)(4). The purpose of this statutory scheme is, inter alia, 

“to balance the demands of the workplace with the needs of 

families, to promote the stability and economic security of 

families, and to promote national interests in preserving family 

integrity” as well as “to entitle employees to take reasonable 

leave for medical reasons.” 29 U.S.C. § 2601(b)(1), (2). It is 

undisputed that the FMLA constitutes “remedial legislation” 

that “must be broadly construed in order to give full effect to 

these purposes.” Caprio v. Healthcare Revenue Recovery 

Grp., LLC, 709 F.3d 142, 148 (3d Cir. 2013) (citations 

omitted) (discussing Fair Debt Collection Practices Act); see 

also, e.g., Cobb v. Contract Transport, Inc., 452 F.3d 543, 559 

 

1

 The District Court had subject matter jurisdiction 

under 28 U.S.C. § 1331. We have appellate jurisdiction 

pursuant to 28 U.S.C. § 1291. 

This Court exercises plenary review over a district 

court’s order granting a motion for summary judgment, 

applying the same standard that the district court ought to 

apply. See, e.g., Doe v. C.A.R.S. Protection Plus, Inc., 527 

F.3d 358, 362 (3d Cir. 2008). As the District Court 

recognized in its memorandum opinion, Federal Rule of Civil 

Procedure 56(a) provides that “[t]he court shall grant 

summary judgment if the movant shows that there is no 

genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” We must draw all 

reasonable inferences in favor of the non-moving party. See, 

e.g., Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 

294, 300 (3d Cir. 2012).
10

(6th Cir. 2006) (“Finally, the worksite provision of the FMLA 

is an exclusionary provision in a remedial statute. Following 

traditional canons of statutory interpretation, remedial statutes 

should be construed broadly to extend coverage and their 

exclusions or exceptions should be construed narrowly.” 

(citation omitted)); Stekloff v. St. John’s Mercy Health Sys., 

218 F.3d 858, 862 (8th Cir. 2000) (“We think, in other words, 

contrary to the position of St. John’s, that the concept of 

‘serious health condition’ was meant to be ‘broad,’ see S. Rep. 

No. 103-3, at 28 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 30, 

and that the FMLA’s provisions should be interpreted to effect 

its remedial purpose. See Hodgens v. General Dynamics 

Corp., 144 F.3d 151, 164 (1st Cir. 1998).”). However, 

Congress explained that this purpose should be accomplished 

“in a manner that accommodates the legitimate interests of 

employers.” 29 U.S.C. § 2601(b)(3).

Under the FMLA, an employer may not “interfere with, 

restrain, or deny the exercise of or attempt to exercise, any 

right provided under this subchapter.” 29 U.S.C. § 2615(a)(1). 

Additionally, “[it] shall be unlawful for any employer to 

discharge or in any other manner discriminate against any 

individual for opposing any practice made unlawful by this 

subchapter.” 29 U.S.C. § 2615(a)(2). “The former provision 

is generally, if imperfectly, referred to as ‘interference’ 

whereas the latter is often referred to as ‘retaliation.’” 

Lichtenstein, 691 F.3d at 301 (citing Callison v. City of 

Philadelphia, 430 F.3d 117, 119 (3d Cir. 2005)). In any event, 

Bonkowski “does not dispute that if he was not qualified for 

leave under § 2612(a)(1)(D), i.e., if he did not have a serious 

health condition, his claims fail as a matter of law.” 
11

Bonkowski, 992 F. Supp. 2d at 509. Specifically, 29 U.S.C. 

§ 2612(a)(1)(D) provides that an eligible employee shall be 

entitled to a total of twelve workweeks of leave during any 12-

month period “[b]ecause of a serious health condition that 

makes the employee unable to perform the functions of the 

position of such employee.”

29 U.S.C. § 2611(11) states that “[t]he term ‘serious 

health condition’ means an illness, injury, impairment, or 

physical condition that involves (A) inpatient care in a 

hospital, hospice, or residential medical care facility; or (B)

continuing treatment by a health care provider.” In turn, “[t]he 

FMLA’s legislative history noted that ‘[t]he definition of 

serious health condition’ . . . is broad and intended to cover 

various types of physical and mental conditions.’” Scamihorn 

v. Gen. Truck Drivers, 282 F.3d 1078, 1084 (9th Cir. 2002) 

(quoting S. Rep. No. 103-3, at 28); see also, e.g., Stekloff, 218 

F.3d at 862. The DOL promulgated interim regulations in 

1993 in order to implement this new statutory scheme. See

The Family & Medical Leave Act of 1993, 58 Fed. Reg. 

31,794 (June 4, 1993) (interim final rule & request for 

comments). At the time, the department offered the following 

explanation of this notion of a “serious health condition”:

The term “serious health condition” is 

intended to cover conditions or illnesses 

affecting one’s health to the extent that inpatient 

care is required, or absences are necessary on a 

recurring basis or for more than a few days for 

treatment or recovery. Furthermore, the 

Congressional reports indicate that this term is 
12

not intended to cover short-term conditions for 

which treatment and recovery are very brief, 

since such conditions would generally be 

covered by employers’ sick leave policies. 

Examples of a serious health condition cited in 

the legislative history include heart attacks, 

heart conditions requiring heart bypass or valve 

operations, most cancers, back conditions 

requiring extensive therapy or surgical 

procedures, strokes, severe respiratory 

conditions, spinal injuries, appendicitis, 

pneumonia, emphysema, severe arthritis, severe 

nervous disorders, injuries caused by serious 

accidents on or off the job, ongoing pregnancy, 

severe morning sickness, the need for prenatal 

care, childbirth and recovery from childbirth.

Id. at 31,799. In the preamble to its 1995 rulemaking 

promulgating final FMLA regulations, the DOL observed that 

“[t]his scant statutory definition [of a “serious health 

condition”] is further clarified by the legislative history.” The 

Family & Medical Leave Act, 60 Fed. Reg. 2180, 2191 (Jan. 

6, 1995) (final rule). Specifically, “[t]he congressional reports 

did indicate that the term was not intended to cover short-term 

conditions for which treatment and recovery are very brief, as 

Congress expected that such conditions would be covered by 

even the most modest of employer sick leave policies.” Id. at 

2191-92.

The DOL has adopted regulations that define the 

various terms incorporated into the FMLA’s definition of a 
13

“serious health condition.” Both the parties and the District 

Court appear to turn to the current version of these DOL 

regulations, which went into effect on March 8, 2013. The 

current version of 29 C.F.R. § 825.113, entitled “Serious 

health condition,” provides that, “[f]or purposes of FMLA, 

serious health condition entitling an employee to FMLA leave 

means an illness, injury, impairment or physical or mental 

condition that involves inpatient care as defined in § 825.114 

or continuing treatment by a health care provider as defined in 

§ 825.115,” § 825.113(a). Entitled “Inpatient care,” 29 

C.F.R. § 825.114 states the following: “Inpatient care means 

an overnight stay in a hospital, hospice, or residential medical 

care facility, including any period of incapacity as defined in § 

825.113(b), or any subsequent treatment in connection with 

such inpatient care.” 29 C.F.R. § 825.115 similarly defines the 

terms “continuing treatment,” and § 825.113 provides 

definitions for “incapacity” and “treatment.” Furthermore, 

there is a separate “Definitions” provision, which states that 

“[s]erious health condition means an illness, injury, 

impairment or physical or mental condition that involves 

inpatient care as defined in § 825.114 or continuing treatment 

by a health care provider as defined in § 825.115” (and also 

incorporates the definition of “continuing treatment” set forth 

in § 825.115). 29 C.F.R. § 825.102.

In fact, the DOL’s FMLA regulations have a rather 

lengthy and complicated history.

 

The department initially promulgated interim 

regulations in 1993. See 58 Fed. Reg. at 31,794. Initially, § 

825.114 was entitled “What is a ‘serious health condition’?” 
14

Id. at 31,817. In addition to explaining, inter alia, the meaning 

of “continuing treatment,” this regulation stated that:

(a) For purposes of FMLA, “serious health 

condition” means an illness, injury, impairment, 

or physical or mental condition that involves: 

(1) Any period of incapacity or treatment in 

connection with or consequent to inpatient care 

(i.e., an overnight stay) in a hospital, hospice, or 

residential medical care facility;

. . . . 

Id. In turn, the interim version of the “Definitions” regulation 

(29 C.F.R. § 825.800) incorporated this identical language 

(and also defined the terms “continuing treatment”). Id. at 

31,835.

The department promulgated final regulations 

implementing the FMLA in 1995, which were in effect from 

April 6, 1995 to January 15, 2009. See 60 Fed. Reg. at 2,180. 

This version of § 825.114 carried the title “What is a “serious 

health condition” entitling an employee to FMLA leave?”

and addressed, among other things, the meaning of 

“continuing treatment.” 29 C.F.R. § 825.114 (effective to Jan. 

15, 2009). However, just like its interim predecessor, this 

version included an “inpatient care” subsection:

(a) For purposes of FMLA, “serious health 

condition” entitling an employee to FMLA 
15

leave means an illness, injury, impairment, or 

physical or mental condition that involves:

 (1) Inpatient care (i.e., an overnight stay) in a 

hospital, hospice, or residential medical care 

facility, including any period of incapacity (for 

purposes of this section, defined to mean 

inability to work, attend school or perform other 

regular daily activities due to the serious health 

condition, treatment therefor, or recovery 

therefrom), or any subsequent treatment in 

connection with such inpatient care; or

. . . .

Section 825.800 then incorporated this same language into the 

DOL’s definition of a “serious health condition” (and, like the 

interim version, also set forth a definition of “continuing 

treatment”). 29 C.F.R. § 825.800 (effective to Jan. 15, 2009).

 

In 2008, the DOL revised its regulatory scheme. The 

Family and Medical Leave Act of 1993, 73 Fed. Reg. 67,934 

(Nov. 17, 2008) (final rule). These FMLA regulations were in 

effect from January 16, 2009 to March 7, 2013 (and 

accordingly were in effect on November 14, 2011, when 

Bonkowski arrived at Butler Memorial Hospital, and on 

November 15, 2011, when he was both admitted and 

discharged). It appears that, in 2013, the department “mov[ed] 

the definitions section from current § 825.800 to currently 

reserved § 825.102.” The Family & Medical Leave Act, 78 

Fed. Reg. 8834, 8835 (Feb. 6, 2013) (final rule). Otherwise, 
16

the 2009-2013 and the current versions of §§ 825.113, 

825.114, and 825.115 are essentially identical (at least for 

purposes of this current appeal). It was actually the 2008 

rulemaking that first broke down what had, to that point, been

a single “Serious health condition” regulation into three 

separate sections. Accordingly, the 2009-2013 version of § 

825.113 was entitled “Serious health condition” and 

addressed the concepts of “incapacity” and “treatment.” 29 

C.F.R. § 825.113 (effective Jan. 16, 2009 to Mar. 7, 2013). 

Subsection (a) of this regulation stated that, “[f]or purposes of 

FMLA, ‘serious health condition’ entitling an employee to 

FMLA leave means an illness, injury, impairment or physical 

or mental condition that involves inpatient care as defined in § 

825.114 or continuing treatment by a health care provider as 

defined in § 825.115.” While § 825.115 explained what was 

meant by the terms “continuing treatment,” § 825.114 

(“Inpatient care”) stated the following: “Inpatient care means 

an overnight stay in a hospital, hospice, or residential medical 

care facility, including any period of incapacity as defined in § 

825.113(b), or any subsequent treatment in connection with 

such inpatient care.” 29 C.F.R. §§ 825.114, 825.115 (effective 

Jan. 16, 2009 to Mar. 7, 2013). Likewise, § 825.800 provided 

a definition of “Continuing treatment” and explained that 

“Serious health condition means an illness, injury, impairment 

or physical or mental condition that involves inpatient care as 

defined in § 825.114 or continuing treatment by a health care 

provider as defined in § 825.115.” 29 C.F.R. § 825.800 

(effective Jan. 16, 2009 to Mar. 7, 2013).

As part of the rulemaking process, the DOL has 

received numerous comments from interested parties, such as 
17

employers, labor unions, and advocacy organizations, 

regarding the meaning and scope of the “continuing treatment” 

language in the FMLA, and, in turn, the department, has 

examined this “continuing treatment” concept in some detail. 

See 73 Fed. Reg. at 67,944-50; 60 Fed. Reg. at 2191-96; 58 

Fed. Reg. at 31,799. In contrast, neither the DOL nor the 

commenters have devoted the same level of scrutiny to either 

the statutory concept of “inpatient care” or the department’s 

own “overnight stay” language. As part of its 1993 interim 

rulemaking, the department expressly distinguished between 

the “inpatient care” and “continuing treatment” prongs (or 

“definitions”) of a “serious health condition”: “FMLA defines 

a ‘serious health condition’ as one which requires either 

inpatient care, or ‘continuing treatment by a health care 

provider.’ Although the meaning of inpatient care is evident, 

the alternative definition raises difficult questions.” 58 Fed. 

Reg. at 31,799. When it promulgated its final regulations in 

1995, the DOL explained that, “[w]hile the meaning of 

inpatient care is evident (i.e., an overnight stay in the hospital, 

etc.), the concept of continuing treatment presents more 

difficult issues.” 60 Fed. Reg. at 2192. Most recently, the 

preamble to the regulations promulgated in 2008 included the 

following discussion of “Section 825.114 (Inpatient Care)”:

Section 825.114 of the proposed rule 

defined what constitutes inpatient care, adopting 

language from the current regulations. The 

definition of “inpatient care” in current § 

825.114(a)(1) incorporates a definition of 

“incapacity,” which was removed from 

proposed § 825.114 and replaced by a cross-
18

reference to the stand-alone definition of 

“incapacity” in proposed § 825.113(b).

The Equal Employment Advisory 

Council commented, “[w]e hope that setting 

‘incapacity’ apart will emphasize for both 

employees and health care providers that actual 

inability to work is a fundamental prerequisite 

for FMLA protection.” There were no 

substantive comments on this section of the 

proposal, and the Department made no changes 

to the proposed text of this section in the final 

rule.

73 Fed. Reg. at 67,947; see also Family & Medical Leave Act 

Regulations: A Report on the Department of Labor’s Request 

for Information, 72 Fed. Reg. 35,550, 35,564 (June 28, 2007) 

(“The first regulatory definition in the regulations 

[promulgated in 1995] is a stand-alone definition from the 

statute—‘inpatient care (i.e., an overnight stay) in a 

hospital.’”).

 

While the DOL has indicated in its rulemaking that the 

statutory terms “inpatient care” clearly (or “evidently”) mean 

“an overnight stay,” the department has not expressly 

addressed what exactly it means by "an overnight stay.” The 

parties, in turn, do not cite to any DOL materials or 

publications that address the meaning of § 825.114 (or its 

predecessors). It is our responsibility to interpret this 

regulation defining the statutory terms “inpatient care” as “an 

overnight stay.” The District Court and the parties have 
19

proffered three basic approaches to § 825.114 and its 

“overnight stay” language—(1) the District Court’s “sunsetsunrise” approach; (2) the “totality of the circumstances” 

approach offered by Bonkowski; and (3) Oberg’s “calendar 

day” approach. Specifically, the District Court relied on 

dictionary definitions of “overnight, “duration,” and “night” to 

conclude that “an ‘overnight’ stay at a hospital is a stay from 

sunset on one day to sunrise the next day.” Bonkowski, 992 F. 

Supp. 2d at 511. Bonkowski argues that “[t]he totality of the 

circumstances demonstrate a genuine issue of material fact 

regarding whether Mr. Bonkowski stayed overnight at a 

hospital.” (Appellant’s Brief at 44 (emphasis omitted).) In 

addition to defending the District Court’s “sunset-sunrise” 

definition, Oberg contends that, at a minimum, the terms “an 

overnight stay” refer to a stay from one calendar day to the 

next calendar day as measured by the inpatient’s admission 

and discharge times.

 

This Court ultimately agrees with the interpretation 

proffered by Oberg—although with one major modification. 

We believe that “an overnight stay” means a stay in a hospital, 

hospice, or residential medical care facility for a substantial 

period of time from one calendar day to the next calendar day 

as measured by the individual’s time of admission and his or 

her time of discharge.

 

In interpreting a federal regulation, we look to wellestablished principles of statutory interpretation. See, e.g., 

Schaar v. Lehigh Valley Health Servs., Inc., 598 F.3d 156, 1 

60 (3d Cir. 2010). While a court generally should consider 

dictionary definitions as part of the interpretation process, it 
20

must do so with some care:

“[T]he starting point for interpreting a statute is 

the language of the statute itself.” Consumer 

Prod. Safety Comm’n v. GTE Sylvania, Inc., 

[477 U.S. 102, 108] (1980). When words are 

not defined within the statute, we construe them 

“in accordance with [their] ordinary or natural 

meaning.” FDIC v. Meyer, [510 U.S. 471, 476] 

(1994). We do not, however, do so blindly.

“[F]requently words of general 

meaning are used in a statute . . . and yet a 

consideration of the whole legislation, or 

of the circumstances surrounding its 

enactment, or of the absurd results which 

follow from giving such broad meaning to 

the words, makes it unreasonable to 

believe that the legislator intended to 

include the particular act.”

Holy Trinity Church v. United States, [143 U.S. 

457, 459] (1892). In such cases, resorting to 

dictionary definitions may be helpful. See MCI 

Telecomm. Corp. v. Am. Tel. & Tel. Co., [512 

U.S. 218, 225] (1994) (stating, based on 

“[v]irtually every dictionary,” that “‘to modify’ 

means to change moderately or in minor 

fashion”). Ultimately though, “[a]mbiguity is a 

creature not of definitional possibilities but of 

statutory context,” Brown v. Gardner, [513 U.S. 
21

115, 118] (1994), so the touchstone of statutory 

analysis should, again, be the statute itself. 

United States v. Brown, 740 F.3d 145, 149 (3d Cir. 2014). 

“We look to dictionary definitions to determine the ordinary 

meaning of a word.” United States v. Husmann, 765 F.3d 169, 

173 (3d Cir. 2014) (citing United States v. Geiser, 527 F.3d 

288, 294 (3d Cir. 2008)). However, it is well established that 

statutory language must be read with reference to its statutory 

context. See, e.g. id. “After all, ‘[a] word in a statute may or 

may not extend to the outer limits of its definitional 

possibilities. Interpretation of a word or phrase depends upon 

reading the whole statutory text, considering the purpose and 

context of the statute, and consulting any precedents or 

authorities that inform the analysis.’” Id. (quoting Dolan v. 

U.S. Postal Serv., 546 U.S. 481, 486 (2006)).

 

Accordingly, “[w]e assume that ‘Congress expresses its 

intent through the ordinary meaning of its language’ and 

therefore begin ‘with an examination of the plain language of 

the statute.’” Disabled in Action of Pa. v. Southeastern Pa. 

Transp. Auth., 539 F.3d 199, 210 (3d Cir. 2008) (quoting 

Rosenberg v. XM Ventures, 274 F.3d 137, 141 (3d Cir. 

2001)). When the statute’s language is plain, the court’s 

obligation is to enforce the statute according to its terms, at 

least where the disposition is not absurd (or where a literal 

application of a statute would not produce a result 

demonstrably at odds with the intentions of its drafters). See, 

e.g., Thorpe v. Borough of Thorpe, 770 F.3d 255, 263-64 (3d 

Cir. 2014); Official Comm. of Unsecured Creditors of 

Cybergenics Corp. ex rel. Cybergenics Corp. v. Chinery, 330 
22

F.3d 548, 559 (3d Cir. 2003) (en banc). In the end, we should 

“avoid constructions that produce ‘odd’ or ‘absurd results’ or 

that are ‘inconsistent’ with common sense.’” Disabled in 

Action, 539 F.3d at 210 (quoting Public Citizen v. U.S. Dep’t 

of Justice, 491 U.S. 440, 454 (1989); 2A N. Singer, Sutherland 

Statutes & Statutory Construction § 45:12 (6th ed. 2000)).

The District Court relied on the on-line versions of The 

Merriam-Webster Dictionary and The Oxford Dictionaries. 

We find it significant that the District Court did not mention 

alternative definitions of the words “overnight” and “night” 

that are set forth in these two dictionaries. As the District 

Court pointed out, The Merriam-Webster Dictionary does 

define the word “overnight”—used as an adverb—to mean 

“for or during the entire night.” The Merriam-Webster 

Dictionary, Overnight, http://www.merriamwebster.com/dictionary/overnight (last visited Dec. 11, 2014). 

However, it also defines the term as meaning “on the evening 

before” or “very quickly or suddenly.” Id. When used as an 

adjective (i.e., “an overnight stay”), “overnight” is defined to 

mean, among other things, “of, lasting, or staying the night,” 

“SUDDEN, RAPID,” “traveling during the night,” 

“accomplished by a mail service within one day’s time,” or 

“delivered within one day’s time.” Id. Likewise, The Oxford 

Dictionaries defines this term (used as an adverb) as “[f]or the 

duration of a night,” but the District Court did not mention that 

this on-line dictionary goes on to state that “overnight” could 

mean “[d]uring the course of a night” or “[v]ery quickly; 

suddenly.” The Oxford Dictionaries, Overnight, 

http://www.oxforddictionaries.com/us/definition.american_en

glish/overnight (last visited Dec. 22, 2014). Like The 
23

Merriam-Webster Dictionary, The Oxford Dictionaries defines 

the adjectival form of “overnight” as “[f]or use overnight,” 

“[d]one or happening overnight,” or “[s]udden, rapid, or 

instant.” Id. Furthermore, we acknowledge that The MerriamWebster Dictionary defines “night” as “the time from dusk to 

dawn when no sunlight is visible,” The Merriam-Webster 

Dictionary, Night, http://www.merriamwebster.com/dictionary/night (last visited Dec. 11, 2014), and 

The Oxford Dictionaries defines this term as “[t]he period of 

darkness in each twenty-four hours; the time from sunset to 

sunrise,” The Oxford Dictionaries, Night, 

http://www.oxforddictionaries.com/us/definition/americanenglish/night (last visited Dec. 16, 2014). The District Court, 

however, failed to acknowledge that this word is also defined, 

inter alia, as “the final part of the day that is usually after 

work, school, etc., and before you go to bed: the early part of 

the night,” The Merriam-Webster Dictionary, Night, supra, 

and as “[t]he period of time between afternoon and bedtime; 

an evening,” The Oxford Dictionaries, Night, supra. Given 

these various definitions, it is not clear to us that (as the 

District Court put it) “[t]he ordinary meaning of the word 

“overnight” in this context is ‘for the duration of the entire 

night’” or that “an ‘overnight’ stay at a hospital is a stay from 

sunset on one day to sunrise the next day,” Bonkowski, 992 F. 

Supp. 2d at 511.

 

In any event, the District Court proceeded to adopt an 

overly narrow reading of § 825.114’s “overnight stay” 

language. In short, its entire approach is premised on such 

extraneous factors as the time of year and the geographic 

location. Simply put, sunset and sunrise times vary throughout 
24

the course of the year (after all, everyone knows that “nights” 

are longer in the winter than in the summer) and are 

determined by the viewer’s position on the Earth (i.e., his or 

her latitude, longitude, and elevation). Bonkowski provides a 

number of examples in which “the District Court’s narrow 

construction of ‘overnight’” appears to result in “unfair 

discrimination between different individuals who have similar 

needs.” (Appellant’s Brief at 32 (emphasis omitted).) The 

District Court relied on The Old Farmer’s Almanac to find 

that, in the zip code for Butler Memorial Hospital, the sun set 

at 5:02 p.m. on November 14, 2011 and rose at 7:07 a.m. on 

November 15, 2011. See The Old Farmer’s Almanac, 

http://www.almanac.com/astromony/rise/zipcode/16001/2011-

11-14, http://www.almanac.com/astronomy/rise/zipcode/2011-

11-15 (last visited on Jan. 5, 2015). On May 14, 2011 and 

May 15, 2011, sunset occurred at 8:29 p.m., and sunrise took 

place at 6:01 a.m. See The Old Farmer’s Almanac, 

http://www.almanac.com/astronomy/rise/zipcode/16001/2011-

05-14, 

http://www.almanac.com/astronomy/rise/zipcode/16001/2011-

5-15 (last visited Jan. 5, 2015). Accordingly, an individual 

who arrived at the hospital at 8:00 p.m. on May 14 and was 

discharged at 7:30 a.m. the following calendar day would 

satisfy the District Court’s “overnight stay” definition—while 

someone who arrived at 8:00 p.m. on November 14 and left at 

7:30 a.m. on November 15 would not. A patient would also 

need to remain at the hospital for more than fourteen hours on 

November 14 and November 15 to meet the District Court’s 

definition. However, a patient who stayed at the hospital on 

May 14 and May 15 need only remain there for approximately 

ten hours. We likewise note that, in Portland, Maine, the sun 
25

set at 4:16 p.m. on November 14, 2011 and rose at 6:35 a.m. 

on November 15, 2011. See The Old Farmer’s Almanac, 

http://www.almanac.com/astronomy/rise/ME/Portland/2011-

11-14, 

http://www.almanac.com/astronomy/rise/ME/Portland/2011-

11-15 (last visited Jan. 5, 2015). A person who walked into a 

hospital at 5:00 p.m. on November 14 and was then released at 

7:30 a.m. on November 15 would meet the District Court’s 

“sunset-sunrise” approach if he or she went to a hospital in 

Butler, Pennsylvania—but not in Portland, Maine. In turn, an 

individual would be required to stay at a Portland hospital for 

(approximately) one more hour than his or her counterpart in 

Miami, Florida (where the sun set at 5:32 p.m. and rose at 6:39 

a.m.). See The Old Farmer’s Almanac, 

http://www.almanac.com/astronomy/rise/FL/Miami/2011-11-

14, http://www.almanac.com/astronomy/rise/FL/Miami/2011-

11-15 (last visited Jan. 5, 2015).

 

In fact, there are certain geographic locations where a 

“sunset-sunrise” approach does not make any sense at all. In 

Fairbanks, Alaska, the sun set at 2:40 p.m. on December 21, 

2011 and then rose at 10:58 a.m. on December 22, 2011—

more than twenty hours later. See The Old Farmer’s Almanac, 

http://www.almanac.com/astronomy/rise/AK/Fairbanks/2011-

12-21, 

http://www.almanac.com/astronomy/rise/AK/Fairbanks/2011-

12-22 (last visited January 5, 2015). Accordingly, a Fairbanks 

patient who arrived at the hospital at 3:00 p.m. on December 

21, 2011 and was discharged at noon the next calendar day 

would not satisfy the District Court’s definition of an 

“overnight stay.” In contrast, the sun set in Fairbanks on June 
26

21, 2011 at 12:48 a.m. and then rose on the same calendar day 

less than three hours later at 2:57 a.m. See The Old Farmer’s 

Almanac, 

http://www.almanac.com/astronomy/rise/AK/Fairbanks/2011-

6-21, http://almanac.com/astronomy/rise/AK/Fairbanks/2011-

6-22 (last visited Jan. 5, 2015). A stay in a Fairbanks hospital 

from 12:15 a.m. to 3:30 a.m. would thereby constitute “an 

overnight stay” under the District Court’s approach.

 

Given these consequences, we must conclude that the 

District Court’s “sunset-sunrise” interpretation produces 

“‘odd’ or ‘absurd results.’” Disabled in Action, 539 F.3d at 

210 (citation omitted). Although Oberg argues that this 

approach has a rational basis, we do not believe that it 

constitutes an appropriate reading of § 825.114 in the present 

statutory and regulatory context.2 See, e.g., Husmann, 765 

F.3d at 173 (“‘We look to dictionary definitions to determine 

the ordinary meaning of a word.’ See United States v. Geiser, 

 

2

 Oberg indicates that this Court should accept the 

“sunset-sunrise” definition because it constitutes a reasonable 

interpretation of § 825.114. For support, it cites to Judge 

Rosenn’s dissenting opinion in Federal Labor Relations 

Authority v. U.S. Department of the Navy, 966 F.2d 747 (3d 

Cir. 1992) (en banc). Judge Rosenn, however, recognized 

that the courts generally defer to an agency’s reasonable 

interpretation of doubtful regulatory language. Id. at 774 

(Rosenn, J., dissenting). As we have already noted, the DOL 

has not addressed the meaning of its own “overnight stay” 

language in its FMLA rulemaking, and the parties likewise do 

not cite to any other DOL materials discussing this concept. 
27

527 F.3d 288, 294 (3d Cir. 2008). It is well settled, however, 

that a ‘word must not be read in isolation but instead defined 

by reference to its statutory context.’ Ali v. Fed. Bureau of 

Prisons, [552 U.S. 214, 234] (2008).”). This case involves a 

DOL regulation implementing a remedial statute designed, at 

least in part, to address problems associated with “inadequate 

job security for employees who have serious health conditions 

that prevent them from working for temporary periods,” § 

2601(a)(4), and to provide employees with the legal right to

“take reasonable leave for medical reasons,” § 2601(b)(2). 

The District Court turned to FAA regulations, which define 

“night” as “the time between the end of evening civil twilight 

and the beginning of morning civil twilight, as published in the 

Air Almanac.” 15 C.F.R. § 1.1. It would appear that the lack 

of sunlight could raise serious safety issues in the context of 

air travel. However, the absence of sunlight, the time of year, 

the geographic location, and similar considerations do not 

have any real relevance to a regulation and statute designed to 

protect the rights of employees to “take reasonable leave for 

medical reasons.”

Although we thereby reject the District Court’s reading 

of § 825.114, we also determine that the interpretation 

proffered by Bonkowski is fundamentally flawed. Insisting 

that the question of whether an employee has “a serious health 

condition” under the FMLA constitutes a question of fact to be 

decided by the jury, he argues that, given the totality of the 

circumstances, a reasonable juror could find that he stayed 

overnight at a hospital. His theory, however, is based on a 

misunderstanding of the judiciary’s obligation to interpret the 

law and the jury’s responsibility to make findings of fact. In 
28

the end, we must reject an open-ended “totality of the 

circumstances” interpretation of the regulation and its “an 

overnight stay” language.

While juries make factual findings, it is the 

responsibility of the judiciary to decide legal questions. This 

obligation clearly encompasses disputes regarding the 

meaning of federal statutes and federal regulations. We have 

approached questions of statutory and regulatory interpretation 

under the FMLA as questions of law to be decided by the 

courts themselves. See, e.g., Budhun v. Reading Hosp. & 

Med. Ctr., 765 F.3d 245, 255 (3d Cir. 2014) (“‘Accordingly, 

we interpret[ed] the requirement that an employee ‘take’ 

FMLA leave to connote invocation of FMLA rights, not actual 

commencement of leave.’ [Erdman v. Nationwide Ins. Co., 

582 F.3d 500, 509 (3d Cir. 2009).] The same reasoning 

applies here. A reading of the statute that denies all rights that 

the FMLA guarantees until the time that an employer 

designates the employee’s leave as FMLA would be illogical 

and unfair.”); Haybarger v. Lawrence Cnty. Adult Prob. & 

Parole, 667 F.3d 408, 410, 412-17 (3d Cir. 2012) (concluding 

that supervisor at public agency may be subject to individual 

liability under FMLA). Accordingly, it is our obligation to 

interpret the DOL regulation at issue in this case. In other 

words, we must decide what the terms “an overnight stay” 

actually mean. It is then the jury’s responsibility to dispose of 

any genuine issues of material fact on the basis of judicial 

instructions explaining the meaning of this legal concept of an 

“overnight stay”.

 

In fact, the two Third Circuit cases cited by Bonkowski 
29

indicate that it is the judiciary that must interpret and give 

meaning to the FMLA (and the DOL’s FMLA regulations).

 

In Schaar v. Lehigh Valley Health Services, Inc., 598 

F.3d 156 (3d Cir. 2010), we considered “whether a 

combination of expert and lay testimony can establish that an 

employee was incapacitated for more than three days as 

required by the FMLA’s implementing regulations,” id. at 156. 

Answering this question in the affirmative, we explained that 

“[o]ur interpretation is guided by the statute and the 

Department of Labor regulations” and that “[w]e interpret 

those regulations using our well-established canons of 

statutory interpretation.” Id. at 160. It was only after we 

interpreted the statutory and regulatory language to conclude 

that an employee may satisfy his or her burden of proving 

incapacitation through a combination of expert and lay 

testimony that we decided whether there was a genuine issue 

of material fact. Id. at 160-61. Applying this interpretation of 

the FMLA scheme, the Schaar Court determined that, given 

the doctor’s assertion that the plaintiff was incapacitated for 

two days and the plaintiff’s own testimony that she was 

incapacitated for two additional days, “a material issue of fact 

exists as to whether Schaar suffered from a ‘serious health 

condition.’” Id. at 161.

 

In Victorelli v. Shadyside Hospital, 128 F.3d 184 (3d 

Cir. 1997), we similarly “disagree[d] with the district court’s 

conclusion that as a matter of law the condition [i.e., a peptic 

ulcer] was a ‘minor one,’” id. at 187. Specifically, we 

concluded that the district court adopted an unduly narrow 

construction of the “continuing treatment” standard set forth in 
30

the DOL’s interim regulations. Id. “Moreover, even if we 

consider the provisions of the final regulation [i.e., the 

regulations promulgated in 1995], we find that it neither states 

nor implies that Victorelli’s ulcer could not meet the 

requirements of a ‘serious health condition.’” Id. at 187-88. 

This Court accordingly conducted its own analysis of the 

regulatory provisions in order to ascertain the meaning of the 

terms “continuing treatment.” Id. at 186-90. We then 

determined that “there is a material issue of fact whether 

Victorelli suffered a ‘serious health condition’ as interpreted 

under both the interim and the final rule.” Id. at 190. 

Significantly, the Court in Victorelli recognized that “[a] 

district court’s interpretation of a federal regulation is a 

question of law subject to plenary review.” Id. at 186 (citing 

Helen L. v. DiDario, 46 F.3d 325, 329 (3d Cir. 1995); ADAPT 

v. Skinner, 881 F.2d 1184, 1191 n.6 (3d Cir. 1989)).

 

It is conceivable that a court could interpret a particular 

statutory or regulatory provision as establishing some sort of 

multi-factor standard under which the fact finder determines 

whether a particular set of circumstances meets this standard. 

See, e.g., Haybarger, 667 F.3d at 418 (“As we recognized in 

applying the economic reality test in the context of the [Fair 

Labor Standards Act], whether a person functions as an 

employer depends on the totality of the circumstances rather 

than on ‘technical concepts of the employment relationship.’” 

(citation omitted)). Even though we ultimately disagree with 

its interpretation, the District Court did at least adopt an 

objective approach that is relatively easy to apply and makes it 

relatively easy to predict whether an employee satisfies § 

825.114 and its “overnight stay” language (i.e., one simply 
31

compares his or her arrival and departure times at the hospital 

with the respective sunset and sunrise times set out in The Old 

Farmer’s Almanac). In contrast, Bonkowski contends that 

(given the requirement to construe the terms “serious health 

condition” broadly to give effect to the FMLA’s remedial 

purpose as well as the general obligation to view the evidence 

in the record in the light most favorable to the non-moving 

party in summary judgment proceedings) a reasonable juror 

could find that he stayed overnight at the hospital because the 

record demonstrated that:

Mr. Bonkowski arrived at the hospital shortly 

before midnight on November 14, 2011; that 

Mr. Bonkowski was admitted to the hospital 

shortly after midnight; that the hospital 

repeatedly designated Mr. Bonkowski as 

“inpatient;” that he remained at the hospital as 

an “inpatient” until the evening of November 

15, 2011 [and thereby spent more than fourteen 

hours at the hospital]; that, while hospitalized, 

Mr. Bonkowski underwent comprehensive 

testing; that Mr. Bonkowski’s doctor wrote him 

a medical note excusing him from work on 

November 15, 2011 because Mr. Bonkowski 

was “hospitalized;” that the District Court itself

referenced Mr. Bonkowski’s stay at the hospital 

as “inpatient;” and that Defendant referred to 

Mr. Bonkowski’s time at the hospital as an 

“overnight situation.”

(Appellants’ Brief at 19-20.) We believe that any kind of 
32

“totality of the circumstances” approach would make it more 

difficult for both employers and employees to predict whether 

a specific set of circumstances rises to the level of “an 

overnight stay” under § 825.114 and lead to additional 

litigation in the future with possibly inconsistent results. The 

adoption of such an open-ended approach could even 

encourage an employer to take adverse action against an 

employee because the employer may be willing to take the 

chance that the jury would ultimately determine that the 

employee’s time at a hospital did not constitute “an overnight 

stay” under the “totality of the circumstances.” In any event, it 

is certainly possible—and even likely—that one jury could 

determine that a particular set of facts rose to the level of “an 

overnight stay” under § 825.114 while another jury could find 

that this same exact factual circumstances did not constitute 

“an overnight stay.” Bonkowski suggests that a juror could 

rule in his favor because he or she may have had the 

experience of checking into a hotel in the middle of the night 

(e.g., 1:30 a.m.), falling asleep, checking out early in the 

morning, and being charged an overnight stay.3 However, the 

interpretation of a DOL regulation implementing a federal 

medical leave statute should not rest on speculation as to the 

personal experience of a potential juror concerning the billing 

 

3

 However, we find it likely the hotel would also 

charge this juror for an overnight stay (or an equivalent fee) if 

he or she checked in and then checked out in the middle of 

the afternoon (e.g., checked in at 3 p.m. and then checked out 

of the hotel at 4 p.m.) or the juror stayed past the checkout 

time.

 
33

practices in the hotel business.4 

 

4

 Bonkowski refers in passing to an on-line dictionary 

definition of “inpatient” as: “‘a patient who comes to a 

hospital or other health care facility for treatment that requires 

an overnight stay.’ Or, ‘a hospital patient who occupies a 

bed for at least one night in the course of treatment, 

examination, or observation.’” (Appellant’s Brief at 45 n.6 

(quoting Medical Dictionary, Inpatient, http://medicaldictionary.thefreedictionary.com/inpatient (last visited May 8, 

2014)).) This definition, however, does not really help us to 

interpret § 825.114 and its “overnight stay” language. After 

all, the regulation itself already defines “inpatient care” as “an 

overnight stay,” and, in turn, the on-line definition of 

“inpatient” does not actually explain the meaning of “an 

overnight stay” (or “occupy[ing] a bed for at least one 

night”).

 
34

 

Bonkowski similarly points out that he was designated 

as “inpatient” in the Butler Memorial Hospital’s records, 

Proviano (the head of Oberg’s human resources department) 

characterized his time at the hospital as an “overnight 

situation” (A292), and the District Court referred to his stay at 

the hospital as inpatient care. Even if we were to adopt a 

“totality of the circumstances” approach, we do not believe 

that such passing references by a district judge, a manager, or 

hospital personnel would be considered dispositive or even 

especially relevant to the outcome. After all, Bonkowski has 

provided no evidence regarding the standards, if any, that 

Butler Memorial Hospital may have used in deciding to use 

the title “Discharged Inpatient Report” on his records, and 

there is no indication that it determined the time he spent at 

the hospital rose to the level of “an overnight stay” under § 

825.114 (and, in fact, the hospital records cited by Bonkowski 

never even referenced this concept of “an overnight stay”). 

As a layperson, Proviano’s characterization carries little, if 

any, weight in ascertaining the meaning of § 825.114 and 

whether this “overnight stay” language has been satisfied. 

Given its ultimate determination that “[t]he undisputed 

evidence of record shows that plaintiff did not stay overnight 

as an inpatient in the hospital” under its own “sunset-sunrise” 

approach, Bonkowski, 992 F. Supp. 2d at 512, we also refuse 

to read too much into the District Court’s passing references 

to his admission as an inpatient and the time he spent at the 

hospital as an inpatient.
35

Having considered and rejected both the “sunsetsunrise” definition as well as an open-ended “totality of the 

circumstances” approach, we conclude that “an overnight 

stay” under § 825.114 means a stay in a hospital, hospice, or 

residential medical care facility for 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.

 

While he was not admitted until shortly after midnight 

on November 15, 2011, Bonkowski testified at his deposition 

that, when he was being wheeled into Butler Memorial 

Hospital, he saw a clock showing that “it was a few minutes 

before 12:00.” (A279.) He therefore takes issue with Oberg’s 

position that a patient’s stay in a hospital, hospice, or 

residential medical care facility should be measured from the 

 

According to Bonkowski, the First Circuit held that 

“‘the [FMLA] should be interpreted broadly enough to 

protect absences from work that are necessary for the purpose 

of having one’s condition diagnosed and treated. . .’” 

(Appellant’s Brief at 45 (quoting Hodgens, 144 F.3d at 165).) 

The Hodgens court made this statement as part of its rejection 

of the district court’s determination that “‘there is no evidence 

that [his health] condition rendered him unable to perform the 

functions of his position,’ as required in 29 U.S.C. § 

2612(a)(1)(D).” Hodgens, 144 F.3d at 163. In fact, the First 

Circuit stated elsewhere in its opinion that “Hodgens does not 

argue that he received any inpatient care for his condition; 

thus § 2611(11)(A) does not apply.” Id. at 161; see also id. at 

162 n.7 (“Subsection 114(a)(1), dealing with inpatient care, is 

not applicable here.”). 
36

moment the individual was admitted. According to 

Bonkowski, it would be absurd (and contrary to the remedial 

purpose of the FMLA) to exclude from the definition of “an 

overnight stay” an individual who arrived at the hospital at 

9:00 p.m. on November 14, 2011, was admitted at 12:01 a.m. 

on November 15, 2011, and was finally discharged at 11:59 

p.m. on November 15, 2011. However, as Oberg points out, 

the Second Circuit has specifically addressed the admission 

concept under a similar statutory and regulatory scheme.

 

In Estate of Landers v. Leavitt, 545 F.3d 98 (2d Cir. 

2009), the plaintiffs were Medicare beneficiaries who received 

inpatient hospital care followed by care at skilled nursing 

facilities (“SNFs”), id. at 103. Part A of the Medicare statute 

provides coverage for post-hospital extended care services if 

such services are furnished to an individual “‘after transfer 

from a hospital in which he was an inpatient for not less than 3 

consecutive days before his discharge from the hospital in 

connection with such transfer.’” Id. (quoting 42 U.S.C. § 

1395x(h)). The Centers for Medicare and Medicaid Services 

(“CMS”) denied the plaintiffs’ claims for Part A coverage 

pursuant to two of its own rules, i.e., the so-called “’threemidnight rule’” in which “a patient is eligible for SNF 

coverage only if he or she has been ‘hospitalized . . . for 

medically necessary inpatient hospital or inpatient [critical 

access hospital] care, for at least 3 consecutive calendar days, 

not counting the date of discharge,’” id. at 104 (quoting 42 

C.F.R. 409.30(a)(1)), and another rule providing that “‘a 

patient is considered an inpatient if [he or she] is formally 

admitted as [an] inpatient,’” id. (quoting CMS, Publ’n No. 

100-02, Medicare Benefit Policy Manual, ch. 1, § 10 (45th rev. 
37

2006)). The plaintiffs (on behalf of a class certified by the 

district court) challenged CMS’s exclusion of time they spent 

in the emergency room or on observation status from counting 

toward the qualifying stay requirement. Id. Upholding the 

district court’s grant of summary judgment in favor of the 

Secretary of Health and Human Services, the Second Circuit 

explained that neither the Medicare statute nor the applicable 

regulation defines the term “inpatient” and that the statute 

itself is ambiguous regarding whether pre-admission time 

spent in observation and in the emergency room should be 

considered inpatient time upon the individual’s later 

admission. Id. at 105-06. Based in part on an analysis of 

CMS’s long-standing, consistent, and reasoned interpretation 

of the statutory language, it proceeded to accord Skidmore5

deference to the agency’s definition of an “inpatient” as a 

person who has been formally admitted to a hospital. Id. at 

105-10. The Landers court concluded that “a Medicare 

beneficiary is not an inpatient within the meaning of § 

1395x(i) unless he or she has been formally admitted to the 

hospital” because this conclusion “is informed by CMS’s 

highly persuasive interpretation” and “it accords with the 

 

5

 The Second Circuit declined to apply the Chevron

doctrine because the CMS interpretation of “inpatient” was 

contained in a policy manual. Landers, 545 F.3d at 105-06. 

Under the Skidmore doctrine, an agency interpretation is 

entitled to “‘respect according to its persuasiveness,’ as 

evidenced by” its thoroughness, the validity of the agency’s 

reasoning, consistency, and other factors that give the 

interpretation power to persuade. Id. at 107 (citation 

omitted). 
38

statutory text and our governing precedents.” Id. at 111.

In the end:

[W]e conclude this portion of our opinion by 

reiterating our core holding in this case: in 

determining whether a Medicare beneficiary has 

met the statutory three-day hospital stay 

requirement needed to qualify for posthospitalization SNF benefits under Part A, the 

time that the patient spends in the emergency 

room or on observation status before being 

formally admitted to the hospital does not 

count. In so holding, we expressly reject the 

rule of Jenkel v. Shalala, 845 F. Supp. 69 (D. 

Conn. 1994), which held that “later ‘formal 

admission’” of a patient following her treatment 

in the emergency room operates as “a nunc pro 

tunc ratification of her de facto admission at the 

time of her arrival in the emergency room.” Id.

at 71 (emphasis omitted). . . 

Id. at 112. The Second Circuit also rejected the plaintiffs’ 

equal protection challenge. Id. “CMS rationally could have 

concluded that a bright line rule measuring inpatient time 

based on formal admission would simplify claims processing 

and reduce administration costs, while targeting the program at 

the group Congress intended to benefit.” Id.

Admittedly, this appeal implicates a different statutory 

scheme enforced by a different federal agency. The Second 
39

Circuit itself premised its holding on an express agency policy 

interpreting the meaning of the term “inpatient” under the 

Medicare program (and the Landers court explained that, “[if] 

CMS were to promulgate a different definition of inpatient in 

the exercise of its authority to make rules carrying the force of 

law, that definition would be eligible for Chevron deference 

notwithstanding our holding today,” id. (citation omitted)). It 

is uncontested that there are no DOL regulations or policies 

expressly defining the word “inpatient” in terms of formal 

admission or explaining why time spent in the emergency 

room or under observation status does not count towards 

determining whether the individual meets § 825.114 and its 

“overnight stay” language.

 

Nevertheless, we believe it is appropriate to follow the 

Second Circuit’s example. We accordingly conclude that “an 

overnight stay” under § 825.114 is triggered by the 

individual’s admission—and not his or her arrival at the 

hospital. After all, both the Medicare and FMLA schemes 

incorporate the same basic notion of inpatient care. While 

Bonkowski contends that (unlike in the Medicare Act context) 

there is a requirement to construe the language of the FMLA 

in order to give effect to the statute’s remedial purpose, amici 

in Landers actually challenged CMS’s definition of “inpatient” 

on the similar grounds that “the general purpose of the 

Medicare Act is ‘to provide affordable medical insurance for 

the aged and disabled,’ [Furlong v. Shalala, 156 F.3d 384, 392 

(2d Cir. 1998)], and that the Social Security Act is to be 

‘liberally construed and applied,’ Rosenberg v. Richardson, 

538 F.2d 487, 490 (2d Cir. 1976); see Mayburg v. Sec’y of 

Health & Human Svcs., 740 F.2d 100, 103 (1st Cir. 1984).” 
40

Landers v. Leavitt, Civil Action No. 3:04-cv-1988 (JCH), 

2006 WL 2560297, at *11 (D. Conn. Sept. 1, 2006); see also, 

e.g., Landers, 545 F.3d at 103 (noting that Part A provides 

basic protection against the costs of hospital, related posthospital, home health services, and hospice care for eligible 

persons over the age of 65). CMS also declined to change its 

long-standing interpretation because, among other things, it 

did not believe that time spent in an emergency room prior to 

formal admission would, by itself, identify the severity of the 

individual’s condition. Landers, 545 F.3d at 109. It appears 

that an individual likewise does not have a condition that 

involves “inpatient care in a hospital, hospice, or residential 

medical care facility” merely because he or she spends some 

time in a hospital emergency room. After all, the fact that an 

individual is sitting in a hospital emergency or waiting room 

does not necessarily indicate that his or her condition 

constitutes more than a short-term medical problem that would 

generally be covered by the employer’s sick leave policy. See, 

e.g., 60 Fed. Reg. at 2191-92; 58 Fed. Reg. at 31,799. The 

time of admission also provides a relatively straight-forward 

and objective criterion to apply (and to predict). In this case, 

the Butler Memorial Hospital records provided by Bonkowski 

expressly identified the “Reg” date or “ADM-DT” (but not the 

time that he first arrived at the hospital). In the end, the time 

of admission—whether considered under the auspices of the 

FMLA or the Medicare Act—represents a bright-line rule that 

targets the persons that Congress (and the respective federal 

agency) intended to protect. 6 See, e.g., Landers, 545 F.3d at 

 

6

 In Lichtenstein v. University of Pittsburgh Medical 

Center, 691 F.3d 294 (3d Cir. 2012), this Court determined 
41

 

that a jury could find that the employee provided adequate 

notice about her need to take leave under the FMLA (i.e., 

sufficient information for an employer to reasonably 

determine whether the FMLA may apply to the leave request) 

where, inter alia, she told her supervisor that her mother was 

taken to the hospital in an ambulance and was currently in the 

emergency room, id. at 303-07. We explained that “[i]t does 

not matter that a person rushed by ambulance to the 

emergency room ‘might not’ require inpatient care as defined 

under the FMLA.” Id. at 305. Noting that data indicated that 

approximately 40% of people taken to the emergency room in 

an ambulance are “admitted for inpatient care” compared 

with just 10% of “walk-ins,” id. at 305 n.16, we observed 

that, “[s]ince many people in this situation do require such 

care, a jury might find that reasonable notice was given under 

the circumstances,” id. at 305. Although it did not directly 

address the question of whether admission is necessary to 

trigger § 825.114 and its “overnight stay” language, the 

Lichtenstein Court did distinguish between the emergency 

room, on the one hand, and “inpatient care as defined under 

the FMLA” (and individuals “admitted for inpatient care”), 

on the other hand (and also drew a distinction between 

individuals taken to the emergency room in an ambulance, 

like Lichtenstein’s mother, and those who do not arrive in an 

ambulance, like Bonkowski himself). 
42

 

We further note that a number of district courts have 

indicated that a mere visit to a hospital emergency room is not 

enough to satisfy § 825.114. See, e.g., Johnson v. Dollar 

Gen., 880 F. Supp. 2d 967, 987 (N.D. Iowa 2012) (“Neither a 

trip to the emergency room nor an in-person visit with the oncall doctor—both of which Johnson’s doctor’s medical 

assistant urged when Johnson called his doctor’s office on 

May 1, 2009—would have constituted ‘inpatient care,’ and 

Johnson refused either kind of treatment.”), aff’d, 508 F. 

App’x 587 (8th Cir. 2013) (per curiam); Anderson v. Nissan 

N. Am., Inc., Civil Action No. 3:09-cv-525 HTW-LRA, 2011 

WL 4625647, at *8 (S.D. Miss. Sept. 30, 2011) (“The 

evidence provided by plaintiff to date does not support a 

conclusion that her husband’s emergency room visit qualifies 

under this definition.”); Santiago v. N.Y. City Police Dep’t, 

No. 05 Civ. 3035(PAC)(MHD), 2007 WL 4382752, at *15 

n.9 (S.D.N.Y. Dec. 14, 2007) (“Although plaintiff was seen 

once at Columbia Presbyterian Hospital in late July or early 

August 2004, his visit was not ‘inpatient care’ as defined 

under the FMLA. It is not clear whether plaintiff was even 

admitted on that occasion, but in any event, he testified that 

he was there for four or five hours and did not seek any other 

follow-up treatment.” (citations omitted)), aff’d, 329 F. App’x 

328 (2d Cir. 2009) (summary order). But see, e.g., Schuler v. 

Branch Banking & Trust Co., No. 1:08cv378, 2009 WL 

3261683, at *7 (W.D.N.C. Jul. 27, 2009) (Howell, U.S.M.J.) 

(“The plaintiff has presented evidence that could be 

considered to show that the plaintiff did have an overnight 

stay in the hospital. On December 24 and 25, that being 

Christmas Eve and Christmas Day of 2006, the plaintiff’s 
43

112.

Like the time of admission, a “calendar day” 

interpretation constitutes an objective “bright-line” criterion 

for deciding whether the individual’s time in the hospital rises 

to the level of “an overnight stay” under § 825.114. This 

should help to simplify any disputes arising out of the 

regulation’s “overnight stay” language (and perhaps even help 

to deter future disputes and FMLA violations because a brightline interpretation should put employers (and their employees) 

on notice of when exactly an employee is entitled to leave 

under the FMLA and § 825.114). In addition, this reading is 

consistent with the purpose of the FMLA as well as the DOL’s 

own regulatory scheme. Without more, an individual who was 

admitted and discharged by a hospital on the same calendar 

day appears to have (as the DOL put it in its preamble to the 

regulations promulgated in 1995) a “short-term condition[] for 

which treatment and recovery are very brief [that Congress 

expected] would be covered by even the most modest of 

employer sick leave policies.” 60 Fed. Reg. at 2191-92. As 

Oberg recognizes, its definition of “overnight stay” as “a 

hospital stay from one day to the next, measured by the 

inpatient’s admission and discharge” generally constitutes a 

more liberal construction of the FMLA than the strict “sunrise-

 

health problems had progressed to the point that she went to 

the emergency room at the hospital. The plaintiff, on one 

occasion, spent the entire night at the hospital [evidently in 

the emergency room].”), report & recommendation rejected in 

part on other grounds & adopted in part, 2009 WL 3261665 

(W.D.N.C. Oct. 8, 2009). 
44

sunset” definition offered by the District Court. (Appellee’s 

Brief at 17 (footnote omitted).) For instance, an individual 

need not be admitted to the hospital before the sun sets (which, 

on November 14, 2011, occurred approximately six hours 

before midnight) in order for his or her stay at the hospital to 

rise to the level of “an overnight stay.” We further note that, 

in any event, a plaintiff who thereby fails to satisfy 29 C.F.R. 

§ 825.114 and the “inpatient care” prong of 29 U.S.C. § 

2611(11)(A) is not left without any possible recourse under the 

FMLA. He or she may still be able to establish that the illness, 

injury, impairment, or physical condition at issue involves 

“continuing treatment by a health care provider” pursuant to 

29 U.S.C. § 2611(11)(B) and 29 C.F.R. §§ 825.113 and 

825.115. 
45

Significantly, the DOL, like CMS,7 has actually relied 

on this notion of a “calendar day” to explain the scope of the 

alternative “continuing treatment” prong. For instance, the 

current version of § 825.115 provides that a serious health 

condition involving continuing treatment by a health care 

provider includes, inter alia: (1) “[a] period of incapacity of 

more than three consecutive, full calendar days,” § 825.115(a); 

and (2) any period of absence to receive multiple treatments 

(including any period of recovery) by a health care provider 

 

7 As the Second Circuit pointed out in Landers, CMS 

adopted a so-called “three-midnight rule,” requiring the 

patient to be hospitalized for inpatient care “‘for at least 3 

consecutive calendar days, not counting the date of 

discharge.’” Landers, 545 F.3d at 103 (quoting § 

409.30(a)(1)). It appears that, under the CMS Policy Manual, 

the decision to admit a patient should be made using “‘a 24 

hour period as a benchmark, i.e., they should order admission 

for patients who are expected to need hospital care for 24 

hours or more.’” Landers, 2006 WL 2560297, at *5 (quoting 

Policy Manual Ch. 1, § 10). The Medicare agency has also 

created a “two-midnight benchmark,” in which “hospital 

visits that are expected to last less than two midnights are 

generally considered inappropriate for inpatient admission 

[while] hospital visits that are expected to last two midnights 

or longer are considered appropriate for admission,” and a 

“two-midnight presumption” providing that claims for stays 

longer than two midnights will be presumed to be generally 

appropriate for payment under Part A. Bagnall v. Sebelius, 

No. 03:11cv1703 (MPS), 2013 WL 5346659, at *12 n.11 (D. 

Conn. Sept. 23, 2013) (quoting 42 C.F.R. § 412.3(e)(1)). 
46

for “[a] condition that would likely result in a period of 

incapacity of more than three consecutive, full calendar days 

in the absence of medical intervention or treatment, such as 

cancer (chemotherapy, radiation, etc), severe arthritis (physical 

therapy), or kidney disease (dialysis),” § 825.115(e)(2). In 

fact, the department adopted—and has continued to apply—a 

requirement of three calendar days of incapacity, even though 

members of the business community would prefer, among 

other changes, a longer minimum period or a period measured 

in terms of business or working days and several advocacy 

organizations took issue with any minimum durational limit. 

See 73 Fed. Reg. at 67,946-47; 60 Fed. Reg. at 2191-95. The 

DOL “concluded that the ‘more than three days’ test continues 

to be appropriate” on the grounds that “[t]he legislative history 

specifically provides that conditions lasting only a few days 

were not intended to be included as serious health conditions, 

because such conditions are normally covered by employers’ 

sick leave plans.” 60 Fed. Reg. at 2195. Under the 

circumstances, we determine that a similar “calendar day” 

approach is appropriate for purposes of § 825.114 and its 

“overnight stay” language.

 

Although we largely adopt Oberg’s reading of § 

825.114, we do so with one significant modification. The 

Court agrees with Bonkowski that it would be absurd to read 

the terms “an overnight stay” to include an employee who was 

admitted at 11:59 p.m. on one calendar day and discharged at 

1:00 a.m. (or even as early as 12:01 a.m.) on the next calendar 

day. Accordingly, the individual must stay for a substantial 

period of time in the hospital, hospice, or residential medical 

facility (as measured by his or her time of admission and time 
47

of discharge). Under the circumstances, a minimum of eight 

hours would seem to be an appropriate period of time. 

However, because we need not decide this issue to resolve this 

dispute, we leave this issue of the requisite length of time for 

another day. It is uncontested that Butler Memorial Hospital 

formally admitted and discharged Bonkowski on November 

15, 2011. Under our “calendar day” approach, the time 

Bonkowski spent in the hospital did not rise to the level of “an 

overnight stay” under § 825.114 because he 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.

 

III.

For the foregoing reasons, we will affirm the District 

Court’s order granting the motion for summary judgment filed 

by Oberg.
FUENTES, Circuit Judge, Dissenting.

In this case, we must interpret the term “overnight 

stay” for purposes of defining a serious health condition 

under the FMLA. The District Court held that an “overnight 

stay” in a hospital is measured from sunset to sunrise. Based 

on dictionary definitions, the test leads to results predicated 

principally on geo-location and the turn of the earth's axis. 

The majority rejects this test and I concur. The majority then 

proposes a new test. It defines “overnight stay” as a hospital 

stay from one calendar day to the next for a substantial period 

of time. A “substantial period,” the majority suggests, would 

be approximately eight hours. I believe this test is as 

inequitable and unworkable as the one it seeks to replace, and 

I therefore respectfully dissent. 

Jeffrey Bonkowski suffered from a preexisting heart 

condition and diabetes. On November 14, 2011, he began 

experiencing shortness of breath and chest pains. In light of 

his appearance and medical history, Bonkowski’s wife drove 

him to the hospital just after 11:00 p.m. that evening. 

Bonkowski arrived at the hospital shortly before midnight. 

Upon arrival, hospital personnel wheeled Bonkwoski into the 

hospital prior to midnight. Bonkowski was admitted as an 

“inpatient” shortly after midnight, where he remained until 

the early evening of November 15, 2011. The hospital 

performed comprehensive testing, and made contingent 

preparations for open heart surgery, prior to his discharge. 

Under the majority’s rendering, although he spent in excess 

of fourteen hours in the hospital as an inpatient from 

admission to discharge, Bonkowski does not qualify for 

FMLA relief because he was not admitted and discharged 

from one calendar day to the next. Because he was admitted 
2

after midnight, the time he spent in the hospital on the “day” 

of his arrival, no matter how long, will not count. If, 

however, he had been admitted to the hospital at 11:00 p.m. 

on November 14th and was discharged at 7:00 a.m. on 

November 15th—a total of eight hours—Bonkowski would 

qualify for relief under the FMLA. 

The majority’s approach is impractical, produces 

inequitable results, and is contrary to the remedial purpose of 

the FMLA. “Congress enacted the FMLA in response to 

concern regarding, [among other things], ‘inadequate job 

security for employees who have serious health conditions 

that prevent them from working for temporary periods.’”1 

The purpose of the FMLA is to “to entitle employees to take 

reasonable leave for medical reasons,” but in a “manner that 

accommodates the legitimate interests of employers.”2 As a 

remedial statute, the FMLA is to be construed broadly “to 

extend coverage and [its] exclusions or exceptions should be 

construed narrowly.”3 Denying FMLA protection to an 

employee who enters the hospital one day and remains there 

 

1 Miller v. AT&T Corp., 250 F.3d 820, 833 (4th Cir. 2001) 

(quoting 29 U.S.C. § 2601(a)(4)).

2 29 U.S.C. § 2601(b)(2), (b)(3). This is effectuated by, for 

instance, requiring an employee to provide adequate notice to 

the employer. See Lichtenstein v. University of Pittsburgh 

Medical Center, 691 F.3d 294, 303 (3d Cir. 2012). It should 

not, however, be accomplished by rejecting legitimate claims 

based on an arbitrary standard.

3 Cobb v. Contract Transport, Inc., 452 F.3d 543, 559 (6th 

Cir. 2006).
3

much of the day, totaling close to nineteen hours, is, in effect, 

truncating coverage and construing exceptions broadly. This 

denial is simply inconsistent with the remedial purpose of the 

FMLA. While I prefer the majority’s test to the District 

Court’s test, I find that it removes only the geographical 

discrepancies implicit in the District Court’s proposed test.

In my view, the majority’s clear, “bright-line” 

approach is an inequitable one. By defining “overnight stay” 

based on “one calendar day to the next,” we fail to consider 

the multitude of factors impacting time of admission and the 

realities of our health care system. This is evident when we 

compare and contrast urban and rural hospitals. An urban 

hospital might be overrun with patients who lack health 

insurance and seek treatment in an emergency room. Thus, if 

an employee arrives at an urban hospital, he may be forced to 

wait hours before admission. Rural hospitals, on the other 

hand, face their own problems: smaller staffing and fewer 

beds might cause delays in admission.4 The majority’s 

 

4 The average wait time to see a physician further differs 

between geographic regions and also by payer type. In 2006, 

the average wait time to see a physician was as follows: 

Northeast (56 minutes), Midwest (50 minutes), South (61 

minutes), West (49 minutes). When analyzed by payer type, 

the average wait time was: Private Insurance (55 minutes), 

Medicare (52 minutes), Medicaid (56 minutes), Worker’s 

compensation (41 minutes), Self-pay (62 minutes), No 

charge/charity (81 minutes). U.S. Gov’t Accountability 

Office, GAO-09-347, Hospital Emergency Department: 

Crowding Continues to Occur, and Some Patients Wait 

Longer than Recommended Time Frames 45-46 tbl. 13 
4

calendar definition also fails to consider seasonal fluctuations 

in hospitals. For instance, flu season typically peaks in 

January and February.5 If an employee falls ill during these 

months, the employee may face delays in admission not 

present during other periods in the year.6 

In addition, an employee may face longer delays in 

admission depending on the day of the week he visits the 

hospital. Mondays, for instance, are considered the busiest 

day of the week, while Thursdays are considered the quietest 

 

(2009). While the difference in minutes appears miniscule, 

when we operate under the majority’s approach, a minute can 

make or break an employee’s claim. 

5 http://www.flu.gov/about_the_flu/seasonal/ (last visited 

May 7, 2015). Studies have shown that January appears to be 

the busiest month of the year in hospitals, whereas November 

and July are the least busy. Chad S. Kessler, M.D., et al., 

Predicting Patient Patterns in Veterans Administration 

Emergency Departments, XII Western Journal of Emergency 

Medicine 2, at 205 (May 2011). 

6 The CDC estimates the average wait time for all types of 

hospital to be over 120 minutes, or two hours, irrespective of 

these additional factors. This is the time measured from when 

the patient arrives until he sees a physician. 

http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6319a8.ht

m. Under the majority’s approach, minutes are of key 

concern. Thus, a delay of 120 minutes clearly can impact an 

employee’s chances of obtaining FMLA relief. 
5

days.7 In fact, research has shown that there may be a 

“weekend effect” that “delays needed hospital care for 

weekend patients. There is some evidence that hospital 

mortality is higher on the weekends for certain types of 

patients.”8 This may lead “care providers [to] rush to 

discharge a patient on Friday so that they are out of the 

hospital by the weekend.”9 Staffing on the weekend and “off 

hours” impacts admission and discharge time. Whereas, 

“[t]he weekday hospital has a full administrative team, 

department chairs and service chiefs, experienced nurse 

managers, and a full complement of professional staff,” in 

contrast “[t]he off-hours hospital . . . rarely, if ever, has senior 

managers present. Nurse-to-patient ratios are significantly 

lower. Even the number of residents is considerably lower . . 

. based on mandated work-hour restrictions.”10 Indeed, an 

employee may be delayed admission based on the time of day 

he arrives at the hospital. In 2006, the highest percentage of 

 

7 Kessler, at 205. 

8 Plan ahead to avoid hospital delays on weekends, The 

Commercial Appeal (Memphis), Mar. 15, 2010, available at 

2010 WLNR 5417578. “Care delays on weekends might be 

worse if a hospital is already full. Many weekend patients 

have to wait until Monday or later to get certain tests or 

procedures.” Id. 

9

Id.

10 David J. Shulkin, M.D., Like Night and Day – Shedding 

Light on Off-Hours Care, The New England Journal of 

Medicine (May 2008). 
6

admissions occurred between the hours of 9 a.m. and 5 p.m.11 

A study by a hospital consulting firm proved that patients 

who arrived in the emergency room between 7 a.m. and 3 

p.m. reported higher satisfaction than those who arrived in the 

evening or overnight hours.12 “By mid-afternoon, wait times 

may be on the rise as patient volumes have increased during 

the day. If a shift change is occurring during a particularly 

busy time, it may add to any actual or perceived 

disorganization or delays for patients.”13 Elective surgeries 

may result in fewer available beds, further back-logging 

admission irrespective of the day of week or hour of the 

day.14 This practice forces ER patients to be “boarded” in the 

Emergency Department or in hospital hallways until beds 

become available.15 All of these factors impact a patient’s 

admission and discharge times and yet the majority’s 

approach is blind to them. 

 

11 Kessler at 205. 

12 Emergency Department Pulse Report 9, available at 

http://www.pressganey.com/Documents_secure/Pulse%20Re

ports/2010_ED_Pulse_Report.pdf. The “[s]taffing patterns, 

patient volume, and acuity of patient conditions may play a 

large part in these differences in satisfaction.” Id. 

13 Id.

14 U.S. Gov’t Accountability Office, GAO-09-347, Hospital 

Emergency Department: Crowding Continues to Occur, and 

Some Patients Wait Longer than Recommended Time Frames 

2 (2009). 

15 ER wait times endanger health, Asbury Park Press, June 

28, 2009, available at 2009 WLNR 15689777.
7

Furthermore, a temporal definition fails to consider 

transportation issues that may impact admission time. These 

may include: variances in traffic patterns which may delay an 

employee’s arrival at the hospital; proximity and travel time 

to a hospital; availability of public versus private 

transportation; and seasonal weather issues such as snow 

storms, which may affect travel. 

Finally, the “one calendar day to the next” approach 

also fails to take into account the intercession of everyday 

annoyances. For example, an employee is being driven to the 

hospital at the onset of his illness, and his transportation 

becomes disabled. He arrives at the hospital at 12:05 a.m. 

and remains in the hospital until 7 p.m. the next evening, a 

total of nineteen hours. This employee would not qualify for 

FMLA relief. But a separate employee arriving at 11:55 p.m. 

would merit relief. Or, consider the employee who arrives at 

11:55 p.m., but because of staffing problems, the employee is 

not formally admitted until 12:02 a.m. He would not qualify 

for FMLA relief. Under the majority’s proposed test, we 

deny FMLA protections to the employees in both scenarios 

simply based off a few minutes difference in time of 

admission.

In light of the myriad problems we face in construing 

“overnight stay” temporally, I, instead, propose a totality of 

the circumstances approach. There are many factors 

probative of an overnight stay in a medical facility. Among 

the most important is the time an employee is formally 

admitted to the hospital and the time he is discharged from 

the hospital. Instead of relying on an arbitrary cut-off time, 

the court can balance whether the employee was discharged 

an hour after being admitted, or whether the employee spent 
8

fourteen hours in the hospital. Another factor is whether the 

employee spent at least part of the traditional night hours in 

the hospital—tracking the DOL’s definition of “inpatient 

care.” The DOL contemplated an “overnight stay” in a 

medical facility; thus, spending ten hours during the day from 

7 a.m. until 5 p.m. may weigh against a finding of an 

“overnight stay,” whereas spending ten hours from 7 p.m. 

until 5 a.m. would weigh in favor of such a finding.

An additional factor is whether admission was 

followed by an assignment to a room. This factor is used in 

other contexts, such as Medicaid. Medicaid defines 

“inpatient” as “a person who has been admitted to a hospital 

for bed occupancy for purposes of receiving inpatient hospital 

services.”16 Other relevant factors include the severity of the 

medical issue presented, whether the hospital ran extensive 

tests, and the hospital’s classification of the employee as an 

“inpatient” or “outpatient.” The benefit of this analysis is that 

a court may assess the entire picture of an employee’s 

hospital experience and then determine whether that 

employee is entitled to relief under the FMLA.

The material facts in this case are not in dispute. As 

previously stated, Bonkowski arrived at the hospital prior to 

midnight on November 14, and the hospital admitted him as 

an “inpatient” shortly after midnight. He stayed at the 

hospital for more than fourteen hours, being discharged in the 

early evening of November 15. While hospitalized, he 

 

16 Barrows v. Burwell, 777 F.3d 106, 108(2d Cir. 2015) 

(citing Medicare Benefit Policy Manual, CMS Pub. No. 100–

02, (“Medicare Policy Manual”) Ch. 1, § 10).
9

underwent comprehensive testing. Under these 

circumstances, I would conclude that Bonkowski had an 

overnight stay in the hospital. 

The majority fears that the totality of the 

circumstances approach would make it more difficult for both 

employers and employees to predict the circumstances that 

would give rise to an “overnight stay” and could lead to 

additional litigation in the future with possibly inconsistent 

results. There are no material issues of fact in Bonkowski’s 

case, and I believe there will be no material issues of facts in 

most of these types of cases. Events leading to an employee’s 

“overnight stay” at a hospital such as travel to the hospital, 

the day, date and time of arrival, the time the employee signs 

into the hospital, the time of admittance and discharge, and 

the employee’s medical report are seldom matters of factual 

dispute. In such cases, I believe that the district court should 

be free to consider all of the circumstances presented and 

conclude whether, as a matter of law, the employee has 

suffered a “serious health condition” under 29 U.S.C. § 

2111(11)(A).

Several courts have held that whether an employee 

suffers from a serious health condition is properly considered 

a question of law.17 

 

17 See, e.g., Alcazar-Anselmo v. City of Chicago, No. 07 C 

5246, 2011 WL 3236024, at *2 (N.D. Ill. July 27, 2011) (on 

summary judgment, analyzing the “continuing treatment by a 

health care provider” prong of 29 U.S.C. § 2111); Helmick v. 

Solid Waste Auth. of Cent. Ohio, No. 2:07-CV-912, 2009 WL 

650417, at *6 (S.D. Ohio Mar. 10, 2009) (same); Whitworth 

v. Consol. Biscuit Co., No. CIV.A. 6:06-112-DCR, 2007 WL 
10

Similar to the majority’s approach, where the facts are 

undisputed in a case, the district court may, in its discretion, 

quite easily determine whether an employee had an overnight 

stay in the hospital weighing the factors I proposed. The only 

difference is that a totality of the circumstances approach 

simply considers more of the evidence rather than solely the 

“one calendar day to the next day” approach that the majority 

proposes. Where material facts in the record are disputed, of 

course, summary judgment cannot be granted and the case 

must be submitted to a jury—but this is true under any 

approach. 

For these reasons, I dissent in favor of a totality of the 

circumstances approach. Unless and until the DOL clarifies 

the definition of “overnight stay,” this approach offers a 

practical and more equitable inquiry into an employee’s 

hospital experience, and one that more fully comports with 

the remedial purpose of the FMLA. 

 

1075774, at *8 (E.D. Ky. Apr. 6, 2007) (“To establish that 

she was incapacitated within the meaning of the FMLA, a 

plaintiff must prove that she suffered from an ‘inability to 

work, attend school or perform other regular daily activities 

due to the serious health condition, treatment therefor, or 

recovery therefrom.’ 29 C.F.R. § 825.114(a)(2)(i). This 

determination is a question of law, and the plaintiff bears the 

burden of proving the objective existence of a serious health 

condition that incapacitated her during the period in 

question.”).