Defining "Serious Health Condition"

On November 17, 2008, the United States Department of Labor published its new final rule on the Family and Medical Leave Act. The final rule, which took effect January 16, makes sweeping changes to existing FMLA requirements and procedures. For a summary of the revisions, see Employers Should Update Family and Medical Leave Act Policies to Reflect Rule Changes and The New FMLA Regulations: Leave for Families of Military Personnel.

Definition of Serious Health Condition

The concept of serious health condition is key to several types of leave under the FMLA. An eligible employee is entitled to FMLA leave when the employee is unable to perform the functions of the job because of the employee's own serious health condition or when the employee is needed to care for a spouse, son, daughter or parent with a serious health condition.

In short, a "serious health condition" entitling an employee to FMLA leave means an illness, injury, impairment, or physical or mental condition that involves either (1) inpatient care or (2) continuing treatment by a health care provider.

Inpatient Care

The definition of "inpatient care" is relatively straightforward. Inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with such inpatient care. The term "incapacity" for purposes of this definition means inability to work, attend school or perform other regular daily activities due to the serious health condition, its treatment, or recovery from it.

Continuing Treatment

The definition of "continuing treatment" encompasses numerous different scenarios, which are discussed in detail in the regulations. A serious health condition involving continuing treatment by a health care provider includes the following:

Incapacity and treatment. Incapacity and treatment requires a period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:

(a) Treatment two or more times within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services under orders of, or on referral by, a health care provider; or

(b) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

The two treatments referred to in (a) above and the initial treatment referred to in (b) above must be in-person. The first (or only) in-person treatment visit must take place within seven days of the first day of incapacity.

In-person treatment or the regimen of continuing treatment may take place after the period of incapacity has ended and the employee has returned to work. Therefore, leave that may not have qualified as FMLA leave at the time it was taken may later meet the requirements of FMLA leave and need to be retroactively designated as such.

Pregnancy or prenatal care. Any period of incapacity due to pregnancy or for prenatal care constitutes continuing treatment entitling the employee to FMLA leave.

Chronic conditions. Chronic conditions include conditions that (a) require visits at least twice a year for treatment by a health care provider, or by a nurse under direct supervision of a health care provider; (b) continue over an extended period of time; and (c) may cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).

Permanent or long-term conditions. Permanent or long-term conditions that qualify as a serious health condition include a period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. For example, Alzheimer's, a severe stroke, or the terminal stages of a disease would qualify as a permanent or long-term condition entitling the employee to FMLA leave.

Conditions requiring multiple treatments. Conditions requiring multiple treatments that qualify as a serious health condition require either (a) a period of absence to receive multiple treatments by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, for restorative surgery after an accident or other injury; or (b) 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).

Leave for Treatment of Substance Abuse

Substance abuse may be a serious health condition. FMLA leave may be taken, however, only for treatment of substance abuse. Absences because of the employee's use of the substance, rather than for treatment, do not qualify for FMLA leave. An employee may also take FMLA leave to care for a covered family member who is receiving treatment for substance abuse.

Serious Health Conditions Are Not…

Although the FMLA regulations do not list ailments that are categorically excluded from the definition of serious health condition, they do state that the following conditions will not ordinarily qualify as a serious health condition: common cold, flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc. However, if complications arise and any of these conditions meet the requirements discussed above, they will constitute a serious health condition. Conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery unrelated to an injury or illness) are not ‘‘serious health conditions'' unless inpatient hospital care is required or unless complications develop.

Going Forward

Prior to the new regulations, the trend in court rulings seemed to be that relatively minor ailments could qualify as serious health conditions under the FMLA. There is nothing in the new regulations that would indicate a reversal in this trend. Moreover, employers should be aware that due to the recent amendments to the Americans with Disabilities Act, certain conditions that do not qualify as a serious health condition may now qualify as a disability under the ADA.

To comply with the new FMLA regulations, employers must revise their FMLA polices and prepare to respond to requests for leave in accordance with the new rule. If you would like assistance in complying with the new regulations, please contact a Faegre & Benson employment lawyer.

Further details are necessary for a complete understanding of the subjects covered by this summary. For this reason, the specific advice of legal counsel is recommended before acting on any matter discussed within.