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Two doctor visits during incapacity period define a serious condition

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in FMLA Guidelines,Human Resources

Don't assume that an employee's three-day absence and two doctor's visits will automatically equal a "serious health condition" that qualifies the employee for FMLA leave.

A new court ruling says it matters when those two doctor's visits occur. They must occur during the employee's "period of incapacity," not in the weeks following.

FMLA rules say a serious health condition is one that requires a hospital stay or "continuing treatment" by a doctor. Continuing treatment includes a period of incapacity of more than three consecutive days and treatment two or more times by a doctor. (To count for the two visits, the rules do allow one medical treatment and a follow-up treatment regimen, such as a prescription or a shot.) But the 10th Circuit has ruled that those two doctor's visits must occur during the employee's period of incapacity, not at a later date.

Bottom line: If the employee needs to be out three days, but sees his doctor only once and doesn't get a prescription or follow-up instructions during that time, you can deny FMLA leave.

Recent case: Mark Jones, a tech worker for a school district, had a poor attendance record. He fell at home, hurt his back and called in sick for two days. He saw a doctor on the third day, only because his supervisor said he needed a doctor's note. He saw the doctor three weeks later for a follow-up visit.

After Jones missed more time for an unrelated ailment not covered by the FMLA, the school district fired him for poor attendance.

He sued under the FMLA, arguing that his back injury was a serious condition and the leave should have been covered by the FMLA. The court tossed out his case, saying his injury didn't qualify because his second "continuing treatment" visit occurred long after his "period of incapacity" ended. (Jones v. Denver Public Schools, No. 04-1447, 10th Cir., 2005)

Note: This is the law of the land now in the 10th Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming). But other courts have ruled that FMLA regulations merely require two or more treatments, and they don't specify when they must occur. Look for the Supreme Court or upcoming Labor Department regulations to sort out this. Also, new FMLA regulations have been promised for more than a year. Hopefully, the regs will clarify this and other thorny issues.

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