Under the federal Family and Medical Leave Act (FMLA), eligible employees have the right to take time off to care for a family member with a serious health condition or to recuperate from their own serious health condition, among other things. (For information on other circumstances in which you might be entitled to time off under the FMLA, see Taking Family and Medical Leave.) Colds and other minor health concerns don't typically qualify for FMLA leave; the law is intended to provide time off only for more serious ailments. As you'll see, however, the rules about what does and does not qualify as a serious health condition can get a bit complicated.
What's a Serious Health Condition?
The FMLA divides serious health conditions for which FMLA leave may be taken into 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.
Find out everything you need to know about the FMLA with Nolo's book The Essential Guide to Family & Medical Leave.
A condition that requires inpatient care -- in other words, an overnight stay -- at a hospital, hospice, or residential care facility qualifies as a serious health condition covered by the FMLA. An employee is entitled to FMLA leave for the time spent receiving inpatient care and for any period of incapacity or subsequent treatment connected to that inpatient care.
Incapacity for More Than Three Days Plus Continuing Treatment
Someone who is incapacitated (unable to work, attend school, or perform other regular daily activities) for more than three days also has a serious health condition, if the person requires continuing treatment from a health care provider. The three days need not be business days, but they must be consecutive.
The "continuing treatment" part of the definition can be met in one of two ways. A person qualifies is either of these is true:
- The person has had 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. Both treatments must 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 extenuating circumstances.
- The person has had at least one treatment by a health care provider resulting in a regimen of continuing treatment under the provider's supervision. This treatment must take place within seven days of the first day of incapacity.
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.
Visits to the doctor 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 routine check-ups.
Chronic Serious Health Conditions
Some ongoing impairments require occasional time off, but the employee isn't always incapacitated or being seen by a doctor. These chronic conditions are 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. Terminal cancer, Alzheimer's disease, and advanced ALS would likely fall into this category.
An employee who must miss work 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.
Surgery to reset a broken limb or repair a torn ligament might fit the first definition. Dialysis or cancer treatment would likely fit the second.
Conditions That Are Not Covered
The FMLA doesn't definitively state that particular illness or diseases are always, or never, serious health condition. Instead, the facts of each situation must be considered on their own. After all, one person's bout with bronchitis might result in a missed day of work and some coughing; another person's might result in an extended hospital stay for pneumonia. In this case, the first person would not have a serious health condition, but the second would.
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. After all, a headache might be caused by minor eye strain -- or by a cancerous brain tumor. The facts always dictate whether a particular employee's situation constitutes a serious health condition or not.