What Is a "Serious Health Condition" Under the FMLA?

The FMLA gives employees a right to take unpaid leave if they have a "serious health condition" that renders them unable to perform the functions of their job. This article is a simplified guide for determining when that provision applies.

1. Does every employee have a right to leave if they have a serious health condition?

No. The FMLA does not apply to all employers or to all employers. The FMLA applies only to an employer that has 50 employees within a 75 mile radius, and the FMLA protects only employees who have been with the company for one year on a full time (1250 hour) basis. A general discussion of the FMLA can be found here.

2. What is the definition of a serious health condition?

The statutory definition is fairly broad:

The term “serious health condition” means an illness, injury, impairment, or physical or mental condition that involves—

(A) inpatient care in a hospital, hospice, or residential medical care facility; or

(B) continuing treatment by a health care provider.

Despite what some employers (and employees) assume, this definition is not limited to physical injuries or illnesses. Instead, it covers:

• illness
• injury
• impairment
• physical conditions
• mental conditions

"Impairment" and "physical condition" are broad terms. The definition also includes mental conditions, which could include anything from mental illness to stress.

However, the coverage applies only if the "inpatient care" or "continuing treatment" requirements are met.

3. What is "inpatient care"?

The Department of Labor has defined this term in a regulation:

Inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity as defined in § 825.113(b), or any subsequent treatment in connection with such inpatient care.

The definition of "incapacity" is as follows:

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.

So the "inpatient care" requires an overnight stay in a hospital or other facility. Just checking into the hospital or going to the emergency room is not enough. However, if the employee spends the night in the hospital, then the "serious health condition" continues throughout the subsequent period of incapacity (even if the employee has gone home to recover) and throughout any subsequent treatment.

4. What is "continuing treatment"?

The definition of "continuing treatment" is much more complex, but is quite broad. There are five options:

a. Incapacity and treatment

The Department of Labor defines this option as follows:

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.

(3) The requirement in paragraphs (a)(1) and (2) of this section for treatment by a health care provider means an in-person visit to a health care provider. The first (or only) in-person treatment visit must take place within seven days of the first day of incapacity.

(4) 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.

(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.

Simplifying that definition, the employer must (i) be incapacitated for over three days, (ii) must visit a health care provider in person at least once, and (iii) must either be treated by the health care provider twice or be placed on a regimen of continuing treatment under the supervision of the health care provider.

This option will not apply to minor illnesses and injuries, because those sorts of conditions will not cause over three days of incapacity.

b. Pregnancy and prenatal care

This is self-explanatory, but the regulation specifies that there must be a "period of incapacity." In other words, pregnancy by itself is not a ground for FMLA leave.

c. Chronic conditions

The Department of Labor defines this option as follows:

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. ).

Again, it is important to note that this option requires incapacity. The mere fact that an employee has a "chronic serious health condition" does not trigger a right to leave.

d. Permanent or long-term conditions

The Department of Labor defines this option as follows:

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.

Obviously, this option involves dire circumstances for the employee. The obvious question is: Why would an employee who is dying or facing long-term medical impairment even care about leave? The answer lies in the requirement of "incapacity." Even employees who have terminal illnesses are still capable of working if they choose to do so. If they become incapacitated for a time, but later are able to work again, they are protected by the FMLA.

e. Conditions requiring multiple treatments

The Department of Labor defines this option as follows:

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).

This is the only option that does not require incapacity. However, it covers only the period of absence to receive the treatment. For example, this option would apply to the period of time needed for dialysis, but it would not entitle the employee to any further leave unless the employee could satisfy one of the other options.

5. If the employee meets the "inpatient care" or "continuing condition" test, is the employee entitled to leave for a "serious health condition"?

As a practical matter, yes.

However, there is a theoretical exception to this. The text of the statute requires (1) that the employee havea serious health condition and (2) that "the employee [is] unable to perform the functions of the position of such employee." To a large extent, the "incapacity" requirement addresses the latter part of the statutory requirement, in that "incapacity" requires "inability to work, attend school or perform other regular daily activities." At least in theory, however, there could be an unusual condition in which the latter part of the statutory requirement comes into play even though the employee has a "serious health condition."

David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes