Why? A Serious Health Condition under the FMLA – Part 1.

Given what we covered last time, it should come as no surprise to any of you that we are now going to dig into the reasons for leave a bit.  What we should do is start with the birth of a child, but we are not going to.  Why, you ask?  I will tell you . . . because that is not the order the DOL wrote the regulations.  They start with serious health condition, so we will too.

So as you will recall, an eligible employee of a covered employer is entitled to take FMLA leave if the employee has a serious health condition or if the employee needs to care for a spouse, child or parent with a serious health condition.  That begs the question: What is a serious health condition?

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).

Ok, so a serious health condition is an “illness, injury, impairment or physical or mental condition.”  That is part 1.  And it involves either “inpatient care” or “continuing treatment” by a “health care provider.”   That is part 2.

So before we get to the definition of those terms, as we will obviously have to do, we have some other terms, and some caveats and some limiters.  No kidding!

First, new definition – what does incapacity mean?  Who cares, you say?  I don’t see incapacity anywhere in that definition you just gave us, you say.  True, you don’t, but it is going to be important when we get to the definition of “continuing treatment” so of course the DOL put it here.

(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.

29 CFR §825.113(b).

Now that is important, but it is important later, so we will come back to it.  Remind me, will you?  Now for the caveats and limiters.

(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)

First thing you notice is we are talking about treatment again.  So treatment includes examinations to find out if you have a serious health condition and to evaluate the condition.  It is not a routine physical or other preventative sort of visits to the doctor.  A regimen of “continuing treatment” is prescription medication or therapy, but it is not taking over-the-counter medication or, for example, “getting plenty of rest and drinking plenty of fluids.”  So taking a couple of aspirins is not continuing treatment even if the doctor tells you to do it.  Again, that is going to be important so we will come back to it.

Finally, cosmetic treatments are not serious health conditions.

(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.

29 CFR §825.113(b).

So basic cosmetic treatments are not serious health conditions . . . unless (hey, that is a caveat to a caveat, leave it to the DOL!) “inpatient hospital care is required or unless complications develop.”  Headaches are not serious health conditions unless they are migraines (another caveat to a caveat).  And finally, mental illness or allergies are serious health conditions if the conditions contained in section 113 are met.  OK, I get that, but who bunches mental illness and allergies together like they are the same thing?  Only the DOL.