What qualifies as a serious health condition under fmla

A serious health condition is an illness, injury, impairment, or physical or mental condition that involves:

• Inpatient care: defined as an overnight stay in a hospital, hospice, or residential medical care facility; any overnight admission to such facilities, or

• Continuing treatment by a health care provider that includes one or more of the following:

  • a period of incapacity of more than three consecutive, full calendar days, with either two or more in-person visits to the health care provider within 30 days of the date of incapacity OR one in-person visit to the health care provider with a regimen of continuing treatment, such as prescription medication, physical therapy, etc. In either situation, the first visit to the health care provider must occur within seven days of the first date of incapacity;

  • any period of incapacity due to pregnancy or for prenatal care;

  • any period of incapacity or treatment due to a chronic serious health condition; that requires periodic visits to a health care provider, continues over an extended period of time and may cause episodic rather than continuing periods of incapacity of more than three days;

  • a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective; or any period of absence due to multiple treatments (including any period of recovery from the treatments) for restorative surgery after an accident or other injury, or 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.

Non-Serious Conditions

The following conditions do not qualify for the FMLA unless complications arise:

• the common cold
• flu
• earaches
• upset stomach
• minor ulcers
• headaches other than migraines
• routine dental or orthodontia problems
• eye examinations
• routine physical examinations
• periodontal disease

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in § 825.114 or continuing treatment by a health care provider as defined in § 825.115.

(b) The term incapacity means inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.

(c) The term treatment includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations. A regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (e.g., oxygen). A regimen of continuing treatment that includes the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed-rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider, is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave.

(d) Conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not serious health conditions unless inpatient hospital care is required or unless complications develop. Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave. Restorative dental or plastic surgery after an injury or removal of cancerous growths are serious health conditions provided all the other conditions of this regulation are met. Mental illness or allergies may be serious health conditions, but only if all the conditions of this section are met.

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

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.

Inpatient Care

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.

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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