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.