FMLA: How to Define a ‘Serious’ Health Condition

White Paper published by The HR Specialist, copyright 2007

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The Family and Medical Leave Act (FMLA) provides qualified employees with up to 12 weeks of unpaid, job-protected leave each year. To qualify, the leave must be triggered by the birth, adoption or foster care of the employee’s child; caring for a child, spouse or parent with a "serious health condition"; or by the employee’s own "serious health condition." The law applies to organizations with 50 or more employees.

As many employers have complained, the definition of serious health condition changes constantly as courts interpret this all-important issue. Under the FMLA a serious health condition is an "illness, injury, impairment or any physical or mental condition that requires inpatient medical care or continuing treatment by a health care provider."

Examples include emphysema, appendicitis, severe respiratory conditions (such as chronic asthma), heart attacks, heart conditions requiring bypass or valve operations, back conditions requiring surgery or extensive therapy, most cancers, strokes, spinal injuries, severe arthritis, pneumonia, severe nervous disorders, any serious injury caused by an accident on or off the job, emotional distress following a miscarriage and migraine headaches.

The law also states that a serious health condition must result from one or more of the following:

• A health condition lasting more than three consecutive days, requiring continuing treatment.
• Any period of incapacity due to pregnancy or prenatal care.
• Any period of incapacity due to a chronic, serious health condition that continues over an extended period of time and requires visits to a health care provider (although not necessarily for each episode associated with that condition).
• A permanent or long-term condition for which treatment may not be effective, requiring supervision by a health care professional (examples: terminal cancer, Alzheimer’s disease, stroke).
• Any absences to receive multiple treatments for restorative surgery or for a condition that would likely result in a period of incapacity of more than three days if left untreated, such as radiation treatment and chemotherapy.

Courts have ruled that the following illnesses are not serious enough to warrant FMLA protection: flu-like symptoms (even if they result in an unconscious state); a single asthma attack, during which there was no evidence that the victim could not care for herself; rectal bleeding, even if the condition could have turned into something more serious; food poisoning that does not require inpatient or continued medical treatment; and an ear infection.

Employment lawyers have found that employees who take FMLA leave for their own "serious health condition" are held to a somewhat higher standard than when they take leave to help an immediate family member with such a condition. As a result, documenting that an employee’s own illness qualifies for FMLA leave usually requires furnishing the employer with more detailed medical information than when proving that a child, spouse or parent has a serious illness.

Does substance abuse qualify?

Substance abuse may qualify as a serious health condition if it meets certain criteria. For example, substance abusers may take leave under the FMLA but only for substance abuse treatment that is administered by a health care provider. If an employee is absent from work because of a substance abuse problem instead of treatment, you do not have to grant him FMLA leave. And remember: Treatment for substance abuse does not mean you cannot take disciplinary action–including termination–against the employee. As long as your policy on substance abuse is the same for all employees and is communicated to all of them, you can take action. But you cannot take action against an employee because he has exercised his right to take FMLA leave for treatment.

Do several illnesses add up to one?

It’s difficult to determine whether an employee has a serious medical condition if several illnesses taken together may constitute a serious health condition, even though none of the illnesses alone would be considered serious under the FMLA.

Take for example, a court ruling in which an employee suffered for seven weeks from numerous ailments, including high blood pressure, hyperthyroidism, back pain, severe headaches, sinusitis, an infected cyst, sore throat, coughing, stress and depression. The employee’s doctor testified that her condition was alarming and any attempt to continue working would undermine her health. The woman requested leave, but it was denied. She was later fired for excessive absences. The appellate court sided with the woman, saying that the employee may be suffering from a serious health condition entitling her to FMLA leave no matter whether it’s the result of one discrete illness or several seemingly unrelated ones.

Recommendation: Err on the side of accepting an employee’s claim of a serious health condition, but make sure you get medical documentation for each presumed illness. The expanding list of conditions that can trigger FMLA leave puts an even weightier burden on you to determine compliance.