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:

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(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:

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(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).