FMLA Clarification

[Rip Verkerke <ripv@virginia.edu>]

Dear Employment Law Students:

In discussing the rules determining what sort of "serious health condition"
makes an employee eligible for FMLA leave, I inadvertently misstated the
role of "more than three days of incapacity."  I mistakenly said that it
applied to inpatient care as well as to "continuing treatment" cases.  This
is incorrect.

The statute defines "serious health condition" as follows:

   . . . an illness, injury, impairment, or physical or mental condition
that involve[s] -
(A) inpatient care in a hospital, hospice, or residential medical care
facility, or
(B) continuing treatment by a health care provider.

29 U.S.C. 2611(11) (See statutory appendix p.127.)

The regulations about which I was speaking in class (reproduced below)
interpret only "continuing treatment" and thus say nothing at all about
cases involving inpatient care.  So inpatient care is by itself sufficient
to satisfy the statutory requirement of a "serious health condition."
However, the employee must still be requesting leave for a period during
which the condition (or its treatment) makes him or her unable to perform
his or her job.  If inpatient care (or pregnancy, or certain chronic health
conditions) is involved, there is no requirement that the period of
incapacity be more than three days.

Warm regards,

Rip

P.S. - You are not responsible for the details of the following regulations.
I include them only to provide some authority for the summary statements
contained in my message.

29 CFR 825.800 - Definitions.
* Section Number: 825.800
* Section Name: Definitions.
For purposes of this part:
Continuing treatment means: A serious health condition involving continuing
treatment by a health care provider includes any one or more of the
following:
    (1) A period of incapacity (i.e., inability to work, attend school or
perform other regular daily activities due to the serious health condition,
treatment therefor, or recovery therefrom) of more than three consecutive
calendar days, and any subsequent treatment or period of incapacity relating
to the same condition, that also involves:
    (i) Treatment two or more times by a health care provider, by a nurse or
physician's assistant 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
    (ii) 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.
    (2) Any period of incapacity due to pregnancy, or for prenatal care.
    (3) Any period of incapacity or treatment for such incapacity due to a
chronic serious health condition. A chronic serious health condition is one
which:
    (i) Requires periodic visits for treatment by a health care provider, or
by a nurse or physician's assistant under direct supervision of a health
care provider;
    (ii) Continues over an extended period of time (including recurring
episodes of a single underlying condition); and
    (iii) May cause episodic rather than a continuing period of incapacity
(e.g., asthma, diabetes, epilepsy, etc.).
    (4) 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.
    (5) 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, either for restorative surgery after an accident or other injury,
or for a condition that would likely result in a period of incapacity of
more than three consecutive calendar days in the absence of medical
intervention or treatment, such as cancer (chemotherapy, radiation, etc.),
severe arthritis (physical therapy), kidney disease (dialysis).