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What is a “Serious Health Condition” Under the Family Medical Leave Act (FMLA)?

FMLA (Funny)

The Family Medical Leave Act entitles covered employees to twelve workweeks of leave during a twelve-month period if the employee has a “serious health condition that makes the employee unable to perform the functions of the position of such employee.”  29 U.S.C. § 2612(a)(1)(D).  What counts as a “serious health condition”?1The statutory definition — “an illness, injury, impairment or physical or mental condition” that involves either inpatient care or “continuing treatment by a health care provider as defined in [29 C.F.R.] § 825.115” — fleshes out the idea some, but not enough.  The regulations offer significantly more guidance, as the case discussed herein illustrates.

In Johnson v. U.S. Steel, an employee suddenly experienced blurry-vision, a stiff-neck, back-pain, and a “major” headache.  He left his work-site (at a U.S. Steel facility) to go to a clinic, where a physician assistant concluded that the employee had high-blood pressure.  The PA prescribed blood-pressure medication, and told the employee to stay home for several days and to follow-up with his regular physician.  Some time later, the employee saw his regular physician, who found the employee’s blood pressure to be normal.  U.S. Steel terminated the employee.  The employee sued, contending that his absences were protected leave, and U.S. Steel’s failure to reinstate him violated the FMLA.

The Eighth Circuit concluded that the employee didn’t have a “serious health condition,” and therefore couldn’t bring an FMLA claim.2The opinion cites to numerous other cases, such as Darby v. Bratch, in which courts found that an employee “could be disciplined for taking unpaid leave not covered by the FMLA.”  The regulations explain how to identify a serious (as opposed to minor) health condition.

(a) Incapacity and treatment.  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 . . . ; 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 C.F.R. § 825.115.  The employee couldn’t say when he had his follow-up visit with his regular physician, so he couldn’t meet the thirty-day requirement in the “two-treatments” definition of serious medical condition.  The employee couldn’t show that the medication he was prescribed was anything more than a single treatment, after which he was sent on his way, so he couldn’t meet the supervision requirement in the “regimen” definition of serious medical condition.  Accordingly, the Eighth Circuit held that the employee couldn’t demonstrate that his condition was sufficiently serious to merit FMLA protection.

The opinion reaffirms the idea that FMLA leave is intended to cover serious health matters, not short-term conditions or minor illnesses.  Of course, every case turns on its own facts.  Employers should consult with competent counsel to determine whether an employee’s purported health condition is, in fact, serious.

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