What Is a Serious Health Condition Under the FMLA?

Not every illness or ailment counts as an FMLA-qualified serious health condition.

By , J.D. · UC Berkeley School of Law

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 Under FMLA?

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.

Inpatient Care

A condition that requires inpatient carein other words, an overnight stayat 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.

Multiple Treatments

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.

Can I Take FMLA Leave for a Mental Health Condition?

Mental health conditions such as depression, anxiety, PTSD, and bipolar disorder can qualify an employee for FMLA leave. But as with physical illnesses and injuries, the employee's (or family member's) mental health condition must require any of the following:

  • inpatient care, including an overnight stay in a hospital or other medical facility
  • three days of incapacity accompanied by treatment by a health care provider, or
  • a period of incapacity caused by a chronic condition and treatment at least twice a year with a health care provider.

Your employer can require you to provide certification of your condition from your health care provider, although a formal diagnosis is not necessarily required.

For more information, check out the Department of Labor's fact sheet on the FMLA and mental health conditions.

Conditions That Are Not Covered Under FMLA

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
  • earaches
  • 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.

Who Is Eligible for FMLA Leave?

An employee must meet the following three conditions to be eligible for FMLA leave:

  • The employee must work at a worksite with 50 or more employees within a 75-mile radius.
  • The employee must have worked for the company for at least 12 months. These months need not be consecutive.
  • The employee must have worked at least 1,250 hours during the 12-month period preceding the employee's leave, an average of just over 24 hours a week.

When to Contact an Employment Attorney

Most requests for FMLA leave are approved without incident. But you might want to contact an employment attorney if any of the following happen to you:

  • Your employer denies your legitimate request for family or medical leave.
  • Your employer retaliates against you (for example, passes you up for a promotion or docks your pay) for taking FMLA leave.
  • Your employer eliminates your job or gives you a less desirable position when you return from FMLA leave.

A knowledgeable employment attorney can negotiate with your employer on your behalf and, if necessary, file a lawsuit or a claim with your state's labor department.

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