Why? A Serious Health Condition under the FMLA – Part 8.

OK, this is it.  We are almost done with the definition of a serious health condition.  I’m serious.  Let’s deal with chronic conditions.  You know, the sorts of health conditions a person might get that just does not go away.  Like asthma or diabetes or epilepsy.  How do these kinds of conditions fit into the definition of a serious health condition?

Let’s start with the definition again:

(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 back to §115 we go.

A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:

* * *

(c) Chronic conditions. Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:

(1) Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider;

(2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and

(3) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).

29 CFR §825.115(c).

So we have three things we need for a condition to be “chronic” and we will start from the bottom and work our way up.  First, the condition may cause “episodic” incapacity.  You know, once in a while.  Like when the weather is bad (or really good he said dripping with sarcasm) and the employee gets an asthma attack.  The condition has to continue over an extended period of time – again, like asthma.  It doesn’t just go away with treatment. And finally, the condition requires periodic visits to the doctor.  And here is where it gets complicated.  You have to see the doctor at least twice per year.    What is twice per year?  According to Lusk v. Virginia Panel Corporation, Civil Action No. 5:13cvO79 (W.D. Vir. 2014), twice per year means that the employee saw a doctor at least twice in the year preceding her need for leave.

Lusk was not treated at all for her mental health condition in the year preceding her alleged FMLA leave on January 16, 2013, and neither did she have a certification from her doctor that she suffered from a chronic condition.  In short, given the evidence addressed at summary judgment, the court cannot conclude as a matter of law that plaintiff Lusk falls within this FMLA category.

So that isn’t a “chronic condition” under the FMLA.  And remember, the general doctor’s visit and three day incapacity rules don’t apply to chronic conditions just like they don’t apply to pregnancy.

(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).

Let’s get a couple of more things out of the way.  You can also get time off for a “permanent or long-term condition,” which is different from a chronic condition and for “conditions requiring multiple treatments.”

(d) Permanent or long-term conditions. A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer’s, a severe stroke, or the terminal stages of a disease.

(e) Conditions requiring multiple treatments. Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, for:

(1) Restorative surgery after an accident or other injury; or

(2) A condition that would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), or kidney disease (dialysis).

29 CFR §825.115(d) & (e).