Archive for the 'FMLA' Category

Why? Military Family Leave . . . . Part 1.

More why employees can take a leave.  Let’s go back to the why just to refresh our recollection.  If you are a covered employer you have to grant leave to an eligible employee for 6 basic reasons:

(a) Circumstances qualifying for leave. Employers covered by FMLA are required to grant leave to eligible employees:

(1) For birth of a son or daughter, and to care for the newborn child (see §825.120);

(2) For placement with the employee of a son or daughter for adoption or foster care (see §825.121);

(3) To care for the employee’s spouse, son, daughter, or parent with a serious health condition (see §§825.113 and 825.122);

(4) Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job (see §§825.113 and 825.123);

(5) Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status (see §§825.122 and 825.126); and

(6) To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. See §§825.122 and 825.127.

29 CFR §825.112(a).

So we have covered 1, 2, 3, and 4.  Now let’s talk about the so called Military Family Leave.  As you can see, an employee can also take leave for certain military issues for their family. An employee under these sections can take FMLA leave for 2 main reasons:  A qualifying exigency; and to care for a “covered servicemember”.  OK what does that all mean?  Let’s start with some definitions.

(a) Covered servicemember means: (1) A current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness; or

(2)  A covered veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness. Covered veteran means an individual who was a member of the Armed Forces (including a member of the National Guard or Reserves), and was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran. See §825.127(b)(2).

29 CFR §825.122(a)(1 & 2).

Simple enough, a covered service member is a person who is in the Armed Forces (including the National Guard or Reserves) who is undergoing treatment for a serious injury or illness or if you are a veteran who was discharged 5 years ago or less and is undergoing treatment for a serious health condition.

That’s one down, now about a spouse.  This was way more complicated before the Supreme Court recognized same sex marriage as a right.  Now, it is just somebody you are legally married to.  29 CFR §825.122(b).  Parent is equally simple it is a parent, step-parent, adoptive parent, foster patent or any individual who stood in loco parentis to the employee.  Loco parentis for those of you that don’t know means somebody who stood in the place of your parent, like grandma, if grandma raised you.  29 CFR §825.122(c).  Son or Daughter is the same, son or daughter means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence.  29 CFR §825.122(d).  Incapable of self-care and physical or mental disability mean that the individual requires active assistance to provide daily self-care and that the individual has a physical or mental impairment that substantially limits on or more major life activities as defined in the ADA.  29 CFR §825.122(d)(1-3).

Why? Leave for Adoption or Foster Care.

More why employees can take a leave.  Let’s go back to the why just to refresh our recollection.  If you are a covered employer you have to grant leave to an eligible employee for 6 basic reasons:

(a) Circumstances qualifying for leave. Employers covered by FMLA are required to grant leave to eligible employees:

(1) For birth of a son or daughter, and to care for the newborn child (see §825.120);

(2) For placement with the employee of a son or daughter for adoption or foster care (see §825.121);

(3) To care for the employee’s spouse, son, daughter, or parent with a serious health condition (see §§825.113 and 825.122);

(4) Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job (see §§825.113 and 825.123);

(5) Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status (see §§825.122 and 825.126); and

(6) To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. See §§825.122 and 825.127.

29 CFR §825.112(a).

We have covered the serious health condition leave, we have covered the birth of a child.  Now let’s talk about placement for adoption or foster care.  You are not going to be surprised to learn that leave for adoption and foster care is very similar to leave for birth of a child.  For example:

(a) General rules. Eligible employees are entitled to FMLA leave for placement with the employee of a son or daughter for adoption or foster care as follows:

(1) Employees may take FMLA leave before the actual placement or adoption of a child if an absence from work is required for the placement for adoption or foster care to proceed. For example, the employee may be required to attend counseling sessions, appear in court, consult with his or her attorney or the doctor(s) representing the birth parent, submit to a physical examination, or travel to another country to complete an adoption. The source of an adopted child (e.g., whether from a licensed placement agency or otherwise) is not a factor in determining eligibility for leave for this purpose.

 29 CFR §825.121(a)(1).

See, like for a birth, you can take leave for the placement of the child.  You can also take leave before the placement for court dates or counseling sessions or doctors’ appointments or appointments with a lawyer.  And you can also take time off to travel to pick up your new child.

The leave for birth or adoption has to be taken within 12 months of the date of the placement. And as is the case with the birth of a child, parents who work for the same employer get a combined total of 12 weeks to be with a healthy placed child.  But the parents still get up to 12 weeks each for a child with a serious health condition.  Finally, leave for a healthy placed child can only be taken intermittently or on a reduced schedule if the employer agrees to let the employee it take it that way.  If the leave is for a serious health condition for the placed child, on the other hand, the employee gets to take the leave intermittently or on a reduced schedule if it is medically necessary, even if the employer objects.

29 CFR §825.121(a)(2-4) and (b

Why? Leave for Pregnancy or Birth . . . . Part 2.

OK, so last time we talked about leave for birth and care of a healthy baby with a healthy mother.  Now let’s talk about some of those other circumstances.  What if mom is incapacitated either before or after the birth?  Of course she gets leave for that:

(4) The expectant mother is entitled to FMLA leave for incapacity due to pregnancy, for prenatal care, or for her own serious health condition following the birth of the child. An expectant mother may take FMLA leave before the birth of the child for prenatal care or if her condition makes her unable to work. The mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from a health care provider during the absence, and even if the absence does not last for more than three consecutive calendar days. The expectant mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from a health care provider during the absence, and even if the absence does not last for more than three consecutive calendar days.

29 CFR §825.120(a)(4).

That makes sense, but why do we need this additional regulations, why isn’t that just covered by the definition of a serious health condition?  Because some of the requirements for a serious health condition don’t apply when the mother is incapacitated due to pregnancy.  For example. The mother does not necessarily need to see a doctor for every incident of incapacity nor does she need to be out for 3 consecutive days.  So when a women is pregnant, she gets a bit more slack cut for FMLA leave and a bit more freedom to take that leave without jumping through hoops go get it approved.

Now a spouse gets time off to take care of a pregnant spouse too:

(5) A spouse is entitled to FMLA leave if needed to care for a pregnant spouse who is incapacitated or if needed to care for her during her prenatal care, or if needed to care for her following the birth of a child if she has a serious health condition. See §825.124.

29 CFR §825.120(a)(5).

And both parents get time off to take care of a newborn that has a serious health condition:

(6) Both parents are entitled to FMLA leave if needed to care for a child with a serious health condition if the requirements of §§825.113 through 825.115 and 825.122(d) are met. Thus, spouses may each take 12 weeks of FMLA leave if needed to care for their newborn child with a serious health condition, even if both are employed by the same employer, provided they have not exhausted their entitlements during the applicable 12-month FMLA leave period.

29 CFR §825.120(a)(6).

So what kind of leave we have when a child is born is important because it determines not only the amount of leave that can be taken by parents who work for the same employer like we discussed last time, but it also determines if the leave can be taken intermittently or on a reduced schedule.

(b) Intermittent and reduced schedule leave. An eligible employee may use intermittent or reduced schedule leave after the birth to be with a healthy newborn child only if the employer agrees. For example, an employer and employee may agree to a part-time work schedule after the birth. If the employer agrees to permit intermittent or reduced schedule leave for the birth of a child, the employer may require the employee to transfer temporarily, during the period the intermittent or reduced leave schedule is required, to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee’s regular position. Transfer to an alternative position may require compliance with any applicable collective bargaining agreement, Federal law (such as the Americans with Disabilities Act), and State law. Transfer to an alternative position may include altering an existing job to better accommodate the employee’s need for intermittent or reduced leave. The employer’s agreement is not required for intermittent leave required by the serious health condition of the expectant mother or newborn child. See §§825.202—825.205 for general rules governing the use of intermittent and reduced schedule leave. . . .

29 CFR §825.120(b).

What all that says is leave for a healthy newborn can only be taken intermittently or on a reduced schedule if the employer agrees to let the employee it take it that way.  If the leave is for a serious health condition for the mother, taken either by the mother or by a spouse to care for the mother, or for a serious health condition for the newborn, on the other hand, the employee gets to take the leave intermittently or on a reduced schedule if it is medically necessary even if the employer objects.

Why? Leave for Pregnancy or Birth . . . . Part 1.

OK we are all done with serious health conditions . . . yea . . . for now.  So why else can you take an FMLA leave?   Let’s look.  If you are a covered employer you have to grant leave to an eligible employee for 6 basic reasons:

(a) Circumstances qualifying for leave. Employers covered by FMLA are required to grant leave to eligible employees:

(1) For birth of a son or daughter, and to care for the newborn child (see §825.120);

(2) For placement with the employee of a son or daughter for adoption or foster care (see §825.121);

(3) To care for the employee’s spouse, son, daughter, or parent with a serious health condition (see §§825.113 and 825.122);

(4) Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job (see §§825.113 and 825.123);

(5) Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status (see §§825.122 and 825.126); and

(6) To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. See §§825.122 and 825.127.

29 CFR §825.112(a).

We talked extensively about what a serious health condition is, so let’s look at a couple of other reasons why an eligible employer can take a leave.  And today, we will start with “(1) For birth of a son or daughter, and to care for the newborn child.”  We don’t really have to define “birth of a son or daughter” do we?  So let’s just get into the specifics of when we have to give that leave.   First, you have to give an employee time off to actually have the baby, Duh!

(a) General rules. Eligible employees are entitled to FMLA leave for pregnancy or birth of a child as follows:

(1) Both parents are entitled to FMLA leave for the birth of their child.

29 CFR §825.120(a).  That makes sense right?  But remember it is not just mom who gets the time off when the baby is born, it is dad too.  And also remember that provision of the regulations says both “parents” get time off for the birth, not “spouses.”

Both parents are also entitled to time off after the birth to bond with an otherwise healthy baby. That time has to be taken within 12 months of the birthday of the newborn and it can be taken even if the baby does not have a serious health condition.  One of the things you need to remember is that some states (most notably California) allow for additional bonding time with occasionally different eligibility rules.  If that is true, any leave that is taken under these state laws that does not qualify for FMLA leave can’t be counted as FMLA leave.  Specifically, the regulation states:

(2) Both parents are entitled to FMLA leave to be with the healthy newborn child (i.e., bonding time) during the 12-month period beginning on the date of birth. An employee’s entitlement to FMLA leave for a birth expires at the end of the 12-month period beginning on the date of the birth. If state law allows, or the employer permits, bonding leave to be taken beyond this period, such leave will not qualify as FMLA leave. See §825.701 regarding non-FMLA leave which may be available under applicable State laws. Under this section, both parents are entitled to FMLA leave even if the newborn does not have a serious health condition.

29 CFR §825.120(a)(2).

OK, that all makes sense.  Parents get time off for the actual birth of the child and then they get additional time off for bonding with the child after the child is born and even if the child is not suffering from a serious health condition.  How much time?  A total of 12 weeks right?  Right, but what if both spouses work for the same employer.  Not all that rare is it?  Well, there is a regulation for that too.

(3) Spouses who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 12 weeks of leave during any 12-month period if the leave is taken for birth of the employee’s son or daughter or to care for the child after birth, for placement of a son or daughter with the employee for adoption or foster care or to care for the child after placement, or to care for the employee’s parent with a serious health condition. This limitation on the total weeks of leave applies to leave taken for the reasons specified as long as the spouses are employed by the same employer. It would apply, for example, even though the spouses are employed at two different worksites of an employer located more than 75 miles from each other, or by two different operating divisions of the same company. On the other hand, if one spouse is ineligible for FMLA leave, the other spouse would be entitled to a full 12 weeks of FMLA leave. Where spouses both use a portion of the total 12-week FMLA leave entitlement for either the birth of a child, for placement for adoption or foster care, or to care for a parent, the spouses would each be entitled to the difference between the amount he or she has taken individually and 12 weeks for FMLA leave for other purposes. For example, if each spouse took six weeks of leave to care for a healthy, newborn child, each could use an additional six weeks due to his or her own serious health condition or to care for a child with a serious health condition. Note, too, that many state pregnancy disability laws specify a period of disability either before or after the birth of a child; such periods would also be considered FMLA leave for a serious health condition of the birth mother, and would not be subject to the combined limit.

29 CFR §825.120(a)(3).

That’s right, when we are talking about the birth of a child and bonding time with a healthy baby, if both spouses work for the same employer you can limit them to a total of 12 weeks of leave.  Now remember this limit only applies to time off for birth and care of a heath baby.  If the baby has a serious health condition both spouses can take a full 12 weeks to care for the baby and the other combinations are way too complicated to get into here.  The thing to remember is the 12 week limit can be different for each different set of circumstances.  Next time we will talk about some of those situations.

Why? A Serious Health Condition under the FMLA – Part 9.

OK honestly, really, this is the last post on a serious Health Condition and what it means.  No kidding, I’m serious.  So let’s go back to the definition:

(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.

29 CFR §825.113(a).

But this time, we are talking about a very specific need for leave.  That is for treatment of substance abuse.  Yes, there is a regulation just for that issue.  And I am sure that is because it comes up . . . a lot.    So, is time off for treatment for substance abuse considered time off for a serious health condition under the FMLA?  It can be.

(a) Substance abuse may be a serious health condition if the conditions of §§825.113 through 825.115 are met. However, FMLA leave may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. On the other hand, absence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave.

29 CFR §825.119(a).

The answer you can see is yes, it can be if it meets the definition of serious health condition that we have been talking about over the last 8 posts.  But there are some caveats here.  First, you have to actually be in treatment.  You can’t just take a leave to recover from the effects of the substance abuse, and that treatment has to be by or under the direction of a health care provider as that term is defined in the FMLA. Second, and again, an absence because of use is not covered by the FMLA.  “I can’t come to work because I’m high” is not an FMLA covered reason for taking time off.  “I need to be out for 3 weeks to be in inpatient treatment for my opioid addiction” is.

OK, so I am in treatment for my opioid addition, can I be disciplined or because I am now covered by the FMLA, does that mean my employer can’t discipline me?  In this case, an employee being on an FMLA leave does not get them off the hook.

(b) Treatment for substance abuse does not prevent an employer from taking employment action against an employee. The employer may not take action against the employee because the employee has exercised his or her right to take FMLA leave for treatment. However, if the employer has an established policy, applied in a non-discriminatory manner that has been communicated to all employees, that provides under certain circumstances an employee may be terminated for substance abuse, pursuant to that policy the employee may be terminated whether or not the employee is presently taking FMLA leave. An employee may also take FMLA leave to care for a covered family member who is receiving treatment for substance abuse. The employer may not take action against an employee who is providing care for a covered family member receiving treatment for substance abuse.

29 CFR §825.119(b).

Here is what you can’t do: you can’t discipline an employee for taking a legitimate FMLA covered leave, no matter why they take the leave.  If it is FMLA covered they are off the hook.  But you CAN discipline an employee that otherwise violates your substance abuse policy, and being on an FMLA leave does not get them off the hook for that policy violation.  Now, you have to be a bit careful here.  You have to have an “established policy;” you have to apply it in a “non-discriminatory manner;” and you have to “communicate it to all employees.”

Oh, and one more thing, don’t forget that an employee can take time off to care for a family member with a serious health condition, and that includes a family member that has is in substance abuse treatment where necessary.  That employee you cannot discipline.

Why? A Serious Health Condition under the FMLA – Part 8.

OK, this is it.  We are almost done with the definition of a serious health condition.  I’m serious.  Let’s deal with chronic conditions.  You know, the sorts of health conditions a person might get that just does not go away.  Like asthma or diabetes or epilepsy.  How do these kinds of conditions fit into the definition of a serious health condition?

Let’s start with the definition again:

(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.

29 CFR §825.113(a).

And back to §115 we go.

A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:

* * *

(c) Chronic conditions. Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:

(1) Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider;

(2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and

(3) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).

29 CFR §825.115(c).

So we have three things we need for a condition to be “chronic” and we will start from the bottom and work our way up.  First, the condition may cause “episodic” incapacity.  You know, once in a while.  Like when the weather is bad (or really good he said dripping with sarcasm) and the employee gets an asthma attack.  The condition has to continue over an extended period of time – again, like asthma.  It doesn’t just go away with treatment. And finally, the condition requires periodic visits to the doctor.  And here is where it gets complicated.  You have to see the doctor at least twice per year.    What is twice per year?  According to Lusk v. Virginia Panel Corporation, Civil Action No. 5:13cvO79 (W.D. Vir. 2014), twice per year means that the employee saw a doctor at least twice in the year preceding her need for leave.

Lusk was not treated at all for her mental health condition in the year preceding her alleged FMLA leave on January 16, 2013, and neither did she have a certification from her doctor that she suffered from a chronic condition.  In short, given the evidence addressed at summary judgment, the court cannot conclude as a matter of law that plaintiff Lusk falls within this FMLA category.

So that isn’t a “chronic condition” under the FMLA.  And remember, the general doctor’s visit and three day incapacity rules don’t apply to chronic conditions just like they don’t apply to pregnancy.

(f) Absences attributable to incapacity under paragraph (b) or (c) of this section qualify for FMLA leave even though the employee or the covered family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive, full calendar days. For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack or because the employee’s health care provider has advised the employee to stay home when the pollen count exceeds a certain level. An employee who is pregnant may be unable to report to work because of severe morning sickness.

29 CFR §825.115(f).

Let’s get a couple of more things out of the way.  You can also get time off for a “permanent or long-term condition,” which is different from a chronic condition and for “conditions requiring multiple treatments.”

(d) Permanent or long-term conditions. 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. Examples include Alzheimer’s, a severe stroke, or the terminal stages of a disease.

(e) Conditions requiring multiple treatments. Any period of absence to receive multiple treatments (including any period of recovery therefrom) 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:

(1) Restorative surgery after an accident or other injury; or

(2) 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).

29 CFR §825.115(d) & (e).

Why? A Serious Health Condition under the FMLA – Part 7.

We are still in section 115 of the Regulations but now we are going to talk about treatment as it relates to a pregnancy and “chronic conditions.”  You see, in addition to your regular old serious health condition that we have been discussing in the last six – yes, six – posts, an employee may also be eligible for leave for treatment for pregnancy or a chronic condition.  We will focus on pregnancy for this post and get to chronic conditions with the next one.

As has become our habit, and in case you are not reading every post on this captivating topic (and if you are not, shame on you), let’s recap:

(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.

29 CFR §825.113(a).

Let’s start with pregnancy.  The Regulations say:

A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:

* * *

(b) Pregnancy or prenatal care. Any period of incapacity due to pregnancy, or for prenatal care. See also §825.120.

29 CFR §825.115(b).

Ok, so what does §825.120 say?  We are going to skip most of this, because we will deal with it when we come to that Regulation, but as it pertains to the mother giving birth:

(a) General rules. Eligible employees are entitled to FMLA leave for pregnancy or birth of a child as follows:

* * *

(4) The expectant mother is entitled to FMLA leave for incapacity due to pregnancy, for prenatal care, or for her own serious health condition following the birth of the child. An expectant mother may take FMLA leave before the birth of the child for prenatal care or if her condition makes her unable to work. The mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from a health care provider during the absence, and even if the absence does not last for more than three consecutive calendar days. The expectant mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from a health care provider during the absence, and even if the absence does not last for more than three consecutive calendar days.

29 CFR §825.120(a)(4).

So mom gets time off for any incapacity due to pregnancy.  The Reg goes on to say that the mother gets time off before the birth for “prenatal care or if her condition makes her unable to work.”  Say, for example, the doctor puts her on bed rest before the birth.  Or for prenatal care, like for doctor’s appointments before the birth.  She also gets time off for her own serious health condition following the birth of the child – say, complications from a difficult delivery or to recover after a C-section. And one more thing to keep in mind here, they have to have a doctor’s visit and the three day incapacity rules don’t apply here:  “The expectant mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from a health care provider during the absence, and even if the absence does not last for more than three consecutive calendar days.”  Out sick due to morning sickness – covered.  Don’t believe me?  Let’s go back to §115.

(f) Absences attributable to incapacity under paragraph (b) or (c) of this section qualify for FMLA leave even though the employee or the covered family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive, full calendar days. For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack or because the employee’s health care provider has advised the employee to stay home when the pollen count exceeds a certain level. An employee who is pregnant may be unable to report to work because of severe morning sickness.

29 CFR §825.115(f).

 

Why? A Serious Health Condition under the FMLA – Part 6.

Yes, we are still talking about what a serious health condition is.  But now we are going to talk about a “regimen of continuing treatment.”

As has become our habit, and in case you are not reading every post on this captivating topic (and if you are not, shame on you), let’s recap:

(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.

29 CFR §825.113(a).

But this time, instead of the two treatments thing, we are going to discuss the “regimen of continuing treatment.”

(2) 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.

29 CFR §825.115(a)(1)&( 2).

So just what is this “regimen of continuing treatment”?  Pretty simple actually:

* * *

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.

29 CFR §825.113(c).

So it is prescription medication, or therapy or something you need the health care provider in order to get it, and not just drink plenty of fluids and take an aspirin.  Simple enough.

Next time, pregnancy.

Why? A Serious Health Condition under the FMLA – Part 5.

Back to a serious health condition and what it means.  As we always do, we will start out with a little refresher:

(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.

29 CFR §825.113(a).

And of course we are talking about the continuing treatments part of that definition.  Remember, last time we left off with when the second of the two treatments have to take place.

(1) 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 (e.g., physical therapist) under orders of, or on referral by, a health care provider; or

(2) 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.

29 CFR §825.115(a)(1)&( 2).

So the second treatment has to take place within 30 days of the first day of incapacity.  I got sick on Monday the 1st.  Have to have two treatments by the 30th.  But who decides?  Do I just get to decide to go back to the doctor a second time and, voila, I have a serious health condition?  Nope, the doctor decides.

Continuing treatment by a health care provider means any one of the following:

* * *

(iv) Whether additional treatment visits or a regimen of continuing treatment is necessary within the 30-day period shall be determined by the health care provider.

29 CFR §825.102.

OK, so the doctor decides.  But is it a serious health condition if the second treatment does not occur until after the employee is no longer sick?  Well, that might depend on where you live.  In Jones v. Denver Public Schools, 427 F.3d 1315 (10th Cir. 2005), the Court said the health condition must be sufficiently serious that it entails an absence of more than three consecutive calendar days during which the employee obtained treatment by a health care provider at least two times.  But in Summerville v. Esco Company, 52 F. Supp. 2d 804 (W.D. Mich. 1999), the court held “Rather, the regulation by its plain language merely requires two or more treatments, without distinguishing between treatments occurring during or after the initial period of incapacity.”

Clear as mud, right?  I’m going with the Summerville Court, but I live and practice (mostly) in Michigan.  You might want to talk to your labor lawyer before you decide to tell an employee they are not covered by the FMLA because they did not have two treatments while they were sick.

Oh, and one more thing – that whole 30 day thing for the second doctor’s visit?  Does not apply if there are “extenuating circumstances.”  What is an extenuating circumstance?

(5) The term extenuating circumstances in paragraph (a)(1) of this section means circumstances beyond the employee’s control that prevent the follow-up visit from occurring as planned by the health care provider. Whether a given set of circumstances are extenuating depends on the facts. For example, extenuating circumstances exist if a health care provider determines that a second in-person visit is needed within the 30-day period, but the health care provider does not have any available appointments during that time period.

29 CFR .§825.115(a)(5).

See you next time when we will talk about a “regimen of continuing treatment.”

 

Why? A Serious Health Condition under the FMLA – Part 4.

Yes, yes, I know we are still talking about “serious health condition” and we have been for the last several posts.  But this is important stuff.  Most of your FMLA leaves are going to be for a serious health condition, either the employee’s or a family member’s.  So this might take a post or two more.

Let’s refresh:

According to the Regulations:

(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.

29 CFR §825.113(a).

So last time we talked about the “three consecutive days” thing.  You remember:

A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:

(a) Incapacity and treatment. 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:

(1) 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 (e.g., physical therapist) under orders of, or on referral by, a health care provider; or

(2) 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.

29 CFR §825.115(a)(1)&( 2).

So we have that down, right?  A period of incapacity that lasts more than three consecutive days.  But that is not it.  The section also says:  “that also involves”.

So in addition to the three consecutive days, you need “continuing treatment by a health care provider”.

The Regulation gives you basically two different situations and says that means:

(1) 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 (e.g., physical therapist) under orders of, or on referral by, a health care provider; or

(2) 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.

Id.

Well, let’s break that down.  We will start with number 1, that makes sense.

You can have “treatment two or more times”.  OK, easy enough, you have to be treated by the “health care provider” at least twice.   Hold it, what does “treatment” mean?  Funny you should ask, because there is a definition:

Continuing treatment by a health care provider means any one of the following:

* * *

(iii) The requirement in paragraphs (i) and (ii) of this definition for treatment by a health care provider means an in-person visit to a health care provider. The first in-person treatment visit must take place within seven days of the first day of incapacity.

29 CFR §825.102.

OK, so treatment means an in-person visit with a health care provider.  But it must also mean more than that, right?  Yes it does.  Treatment also means:

(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.

29 CFR §825.113(c).

Man, we are all over these Regulations just to get to one definition.  So, treatment means an in-person visit with a health care provider “to determine if a serious health condition exists and evaluations of the condition”.

Now let’s touch on that two or more times thing.  First, as you can see, the “first in-person treatment visit must take place within seven days of the first day of incapacity.”  So I got sick on Monday, as a threshold issue I need to see the doctor within seven days of Monday.

OK, I think that is enough for today.  It’s enough for me anyway.  We will talk about that second visit next time.

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