The federal Family and Medical Leave Act (FMLA) gives eligible employees the right to time off work to recover from a serious health condition or to care for a family with a serious health condition (among other things). The term “serious” is intended to weed out minor ailments, like colds, earaches, and headaches. In some situations, however, 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. So what counts as a serious health condition – and how 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 these six 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 incapacity, and
- certain conditions requiring multiple treatments.
If an employee or an employee’s family member requires an overnight stay at a hospital, hospice, or residential care facility, that qualifies as a serious health condition under the FMLA. An employee can use FMLA leave for the time spent receiving inpatient care and for any period of incapacity or 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 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 going to school or working) for more than three days also has a serious health condition, but only if the person requires continuing treatment from a health care provider. The three days must be consecutive, but they can include weekends and holidays; they need not be business days.
Continuing treatment from a health care provider means either of the following:
- At least two treatments by a health care provider, a nurse under the direct supervision of a health care provider, or a provider of health care services under order of, or on referral by, a health care provider. These treatments must both take place within 30 days of the first day of incapacity, and the first treatment must take place within seven days of the first day of incapacity, absent unusual circumstances.
- At least one treatment by a health care provider, followed by a regimen of continuing treatment under the provider's supervision. This treatment must take place within seven days of the first day of incapacity.
The person’s treatment must fit into one of these two definitions in order to qualify as “continuing.” In other words, 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 need not be out for more than three days nor actually visit a doctor to qualify for time off under this subcategory.
Routine doctor visits for prenatal care are also covered. The employee need not 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, and
- 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 Incapacity
An employee who is incapacitated permanently or for the long term by a condition that is not necessarily amenable to treatment has a serious health condition, as long as the employee is under the supervision of a health care provider. Late-stage cancer and Alzheimer's disease would likely fall into this category.
An employee who needs time off for multiple treatments has a serious health condition if the treatments are for:
- restorative surgery after an accident or injury, or
- a condition that would require an absence of more than three days if not treated.
Under the first definition, an employee who needs time off for hip replacement surgery or a surgical repair of a torn ligament would likely qualify for time off. Dialysis or cancer treatment would likely fit into the second definition.
Conditions That Are Not Covered
Under the FMLA, the facts of each situation must be analyzed in determining whether someone has a serious health condition. The effect of the ailment, treatment sought, and so on determine whether the FMLA applies.
Nonetheless, there are certain ailments that don't typically qualify as serious health conditions, including:
- colds and flu
- upset stomachs and minor ulcers
- headaches (other than migraines)
- routine dental or orthodontic problems or periodontal disease, and
- cosmetic treatments (other than for restorative purposes), unless complications arise or inpatient care is required.
Even these conditions aren't automatically excluded from coverage. For example, an upset stomach might be the result of one too many trips to the all-you-can-eat buffet or it might be a symptom of Crohn’s disease or colon cancer. The facts always dictate whether a particular employee's situation constitutes a serious health condition or not.
Use Medical Certifications to Get the Facts
As you can see, whether an employee (or the employee’s family member) has a serious health condition depends on the circumstances. To find out whether a particular ailment is protected by the FMLA, ask employees who need time off for medical reasons to complete a medical certification: a form to be completed by the employee and the doctor, which provides details about the employee’s situation. It’s not up to you to diagnose employees or to provide medical opinions about an employee’s health. Instead, by using a certification form, you can ask the medical professionals to make this judgment, so you can make sure your company meets its legal obligations to employees who are protected by the FMLA.