One of the biggest concerns our clients express is determining “what is a serious health condition in accordance with the requirements for a medical leave of absence under the FMLA.
Well, let’s start with the term “serious” is intended to exclude minor ailments, like colds, earaches, flus, and headaches.
Now, I want you to keep in mind, whether a health condition is serious depends on its origin or effects. For example, a cold is typically not a serious health condition, but it could become one if it leads to pneumonia. The health care provider will make the determination of whether a condition is serious; it is not at the discretion of the employer so do not try to become doctors!
So, the question is, “what counts as a serious health condition?” Let’s explore some options on how you can you tell whether an employee qualifies for this type of leave.
Types of serious health conditions
Under the FMLA, a serious health condition must fall into one of the following categories:
- Inpatient care
- Incapacity for more than three days with continuing treatment by a health care provider
- Incapacity relating to pregnancy or prenatal care
- Chronic serious health conditions
- Permanent or long term conditions
- Conditions requiring multiple treatments
Conditions requiring an overnight stay at a hospital facility (examples, hospice, or residential care facility) are automatically considered a serious health condition under the FMLA including subsequent treatment connected to that care.
Incapacity for more than three days plus continuing treatment
This is the category of serious health condition that has proven to be the most confusing – and perhaps the most likely to lead to legal claims. Someone who is incapacitated (unable to perform regular daily activities, such as working) for more than three days also has a serious health condition, but only if the person requires continuing treatment from a healthcare provider. The three days must be consecutive, but they can include weekends and holidays; they do not need to be business days.
Note: An employee who simply takes a week off due to illness without seeking treatment does not have this type of serious health condition.
Pregnancy or prenatal care
An employee who is unable to work or perform other regular, daily activities due to pregnancy, has a serious health condition. An employee incapacitated because of pregnancy, perhaps morning sickness, can take FMLA leave for the condition even if she doesn’t see a doctor and isn’t incapacitated for more than three consecutive calendar days. The employee doesn’t have to be incapacitated or suffering from medical complications to qualify; leave can be used even for regular check-ups.
Chronic serious health conditions
Certain long-term or otherwise chronic impairments require time off, but the employee isn’t always incapacitated or being seen by a doctor. These chronic conditions qualify as serious health conditions covered by the FMLA if:
- The employee requires periodic visits for treatment, defined as at least two visits per year with a health care provider or nurse acting under a provider’s supervision;
- The condition continues over an extended period of time; or
- The condition may cause episodic, rather than continuing, incapacity
Conditions that may qualify in this category include diabetes, epilepsy, or asthma
Permanent or long term conditions
The FMLA covers a period of incapacity that is permanent or long term because of a condition for which treatment may not be effective (e.g., Alzheimer’s, stroke, terminal disease).
The Family Medical Leave Act was amended to provide two important leave entitlements that benefit military families.
The following is a brief summary of these provisions. Additional eligibility requirements may apply.
- A “qualifying exigency” arising out of a covered family member’s active duty or call or order to active duty in the National Guard or Reserves (or from retirement from certain military service) in support of a contingency operation. A qualified exigency may include attending military events, arranging for alternative childcare, addressing financial and legal arrangements, seeking counseling, attending post-deployment activities, and other similar circumstances.
A leave of absence of up to 26 weeks in any single 12 month period and will be granted to eligible employees for the following purpose:
- To care for an injured or ill covered family member or next-of-kin (nearest blood relative) who is injured or recovering from an injury or illness suffered in the line of duty while on active duty as a current member of the Armed Forces, including the National Guard or Reserves, provided that such injury or illness renders the covered service member unfit to perform his/her duties and for which the member is (1) undergoing medical treatment, recuperation or therapy; (2) in outpatient status; or (3) on the temporary disability retired list.
Note: Leave to care for an injured or ill service member, when combined with other FMLA qualifying leave, may not exceed 26 weeks in any single 12-month period.
Conditions requiring multiple treatments
An employee has protected absences to receive multiple treatments by healthcare providers and also to recover from the treatment, (e.g. chemotherapy). This would include reconstructive surgery after an accident or injury or a condition that would likely have an outcome of incapacity of more than three consecutive full calendar days if left untreated.
To find out whether a particular condition is protected by the FMLA, employers need employees to complete a medical certification: a form to be completed by the employee and the doctor, which provides details about the employee’s situation. REMEMBER, it’s not up to the employer to diagnose or to provide medical opinions about an employee’s health. Instead, by using a certification form the medical professionals will make this judgment, and the company can meet its legal obligations to employees who are protected under the FMLA.
As always, I will remind you do not terminate an employee who fails to return timely from a leave of absence without consulting with your attorney or other experienced professional.