Why? A Serious Health Condition under the FMLA – Part 3.

Remember how short the last post was?  Not this one.

So let’s go back.  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).

Last time we talked about “inpatient care”.  This time we are going to talk about “continuing treatment”.

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 the first thing we need for a serious health condition involving “continuing treatment” is a period of incapacity and treatment lasting “more than three consecutive full calendar days”.  So we start with incapacity.  Remember incapacity?

(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).

And you didn’t even remind me.  So we have to have “incapacity”, which means the employee basically can’t do what they would normally do during the day, and it has to last for more than three consecutive, full calendar days.  A couple of things to point out there:

The incapacity has to last for “more than three consecutive days.”  Out sick Monday, Wednesday and Thursday does not count.  Not consecutive days.  Second thing you need to note is that it is “full calendar days”.  If the employee went home early on Friday, was still sick Saturday and Sunday and comes back to work Monday, that is not a serious health condition.  Not because of the Saturday and Sunday – if the employee can’t do his normal daily activities, those days count (remember, it is “calendar” not “work” days).  It does not count because that is not three “full” days.  The employee worked part of Friday, so he was clearly not incapacitated for the full day Friday.

We will get into this more next time.