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.”