Determine a "Serious Health Condition" Under Family Medical Leave Act Regulations

The Family and Medical Leave Act (FMLA) allows you to take leave or a reduced schedule for a serious health condition—either your own condition or a qualifying family member’s (such as a child, spouse, or parent). Generally, a “serious health condition” is an illness, impairment, injury, or physical/mental condition that results in a period of incapacity or treatment. You or your family member are incapacitated when you can’t work, go to school, or perform regular daily activities.

Steps

Identifying a Serious Health Condition

1. Check if you have received inpatient care. Your illness or injury will qualify as a “serious health condition” if it involved a period of incapacity or treatment with inpatient care at a hospice, hospital, or residential medical care facility.
   • For example, if you were in a car accident and in the hospital for several days, then you qualify.
   • In-patient care means you spent an overnight in the hospital, hospice, or residential medical care facility.
2. Count the number of days missed. You also qualify as having a “serious health condition” if you missed work, school, or other regular activities for three calendar days in order to receive continuing treatment from a health care provider. Continuing treatment means one of the following:
   • You have had at least one treatment by a health care provider, which results in a regiment of continuing treatments under the provider’s supervision. You must have received treatment within seven days of the onset of the incapacity.
   • You have had at least two treatments by a health care provider or under their supervision. These two treatments take place within 30 days of the onset of the incapacity. The first treatment must take place within the first seven days of incapacity.
3. Determine if you have a permanent condition. You can qualify as having a “serious health condition” when your incapacity stems from a permanent or long-term condition which treatment may not be effective. Examples include:
   • Alzheimer’s
   • stroke
   • terminal illness
4. Check if you have a chronic condition. A “serious health condition” may exist where you suffer a period of incapacity or treatment due to a chronic serious health condition. Examples include asthma, epilepsy, and diabetes. Your chronic condition is covered by the FMLA if the following apply:
   • You require periodic visits for treatment. This means at least two visits per year with a health care provider.
   • Your condition continues for an extended period.
   • Your condition might cause episodic (instead of continuing) incapacity. For example, an epileptic attack might incapacitate you only briefly.
5. Determine if you require multiple treatments. You also qualify as having a “serious health condition” when you receive treatment for a condition that would leave you incapacitated in the absence of treatment. Examples include:
   • Receiving chemotherapy treatments.
   • Taking physical therapy.
   • Receiving dialysis treatment.
6. Identify if you are pregnant. You also qualify for a “serious health condition” if your incapacity is due to pregnancy, including visits to the doctor for prenatal care.
   • Unlike the other categories, you don’t have to suffer from complications to qualify when pregnant. You also don’t have to be out of work for three days or go see a doctor.

Obtaining Medical Certification

1. Wait for your employer to ask. You don’t have to get a medical certification on your own initiative. Instead, you can wait for your employer to issue you certification forms, which you must have a health care provider complete.
   • If your employer does ask, then you must be given at least 15 calendar days to seek the certification.
2. Find an appropriate health care provider. You can’t meet with just anyone. Instead, the following qualify as acceptable health care providers who can provide a certification:
   • Doctors of medicine or osteopathy authorized to practice in their state.
   • Dentists, clinical psychologists, optometrists, and podiatrists authorized to practice in their state and performing within the scope of their practice.
   • Chiropractors authorized in their state. Chiropractors are limited to manual manipulation of the spine to correct a subluxation revealed by an X-ray.
   • Nurse practitioners, nurse-midwives, and clinical social workers. They must be authorized to practice in their state and be performing within the scope of their practices.
   • Christian Science practitioners who are listed with the First Church of Christ (Boston, Massachusetts).
   • Any health care provider recognized by either the employer or their group health plan’s benefits manager.
   • Health care providers listed above who practice in a country outside the U.S. and who are authorized to practice under the laws of their country.
3. Obtain a second opinion. Your employer may choose to request a second medical certification. However, your employer must pay for this appointment. Your employer may also select the health care provider who examines you, although they typically can’t choose someone they contract with regularly.
   • If the second opinion confirms the first, then you will qualify as having a serious health condition.
   • If the second opinion differs from the first, then your employer can require a third opinion. The employer must pay for the evaluation and may also choose the doctor. The third opinion will be the final opinion.

Seeking Legal Help

1. Identify when to seek legal help. If your employer is fighting your attempt to take FMLA leave, then you should meet with a lawyer to talk about your options. You will want to talk to a legal professional in the following situations:
   • Your employer refuses to consider your ailment a serious health condition.
   • Your employer disciplines you for missing work because of your ailment. Your employer is not allowed to consider FMLA leave as an absence.
   • Your employer requires that you give too much notice to take FMLA leave.
   • Your employer cuts off your health insurance while you are out on FMLA leave. The law requires that your employer continue your insurance.
   • You aren’t left alone while out on leave. Although your employer may request a periodic status report, they cannot hound you.
   • You are fired for taking leave.
   • Your employer does not reinstate you to an equivalent position promptly once you complete leave. An equivalent position must be almost identical in terms of pay, benefits, schedule, jobsite, shift, etc.
2. Find an employment lawyer. You can ask friends and family if they have used an employment lawyer. Write down the person’s name. However, you might not have any leads. In that case, you can find a lawyer by doing the following:
   • Contact your local or state bar association.
   • Look in your phone book. Employment lawyers still advertise in the Yellow Pages.
   • Search online for a statewide association of employment lawyers. California, for example, has the California Employment Lawyers Association.
3. Attend a consultation. Call up the lawyer and schedule a consultation, which should last 15-30 minutes. Bring anything the lawyer requests, such as your doctor’s certification and communications from your employer.
   • Ask the lawyer how much experience they have in FMLA cases. You want someone familiar with the law.
   • Be sure to discuss how much the lawyer charges to represent clients. Generally, lawyers charge by the hour.
   • However, employment lawyers sometimes represent employees on “contingency.” If the lawyer thinks you should sue your employer, then the lawyer might agree to accept a percentage of the amount you win instead of a fee.
4. Hire the lawyer. Before hiring, read your fee agreement (also called an engagement letter). This document should explain what the lawyer will do and how much you will be charged. Make sure you agree with everything in the letter before signing.

References

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