Employee Engagement

Under the Family and Medical Leave Act (FMLA), two of the conditions under which employees can take family leave include:

• The employee's serious health condition; or
• The serious health condition of a spouse, son, daughter or parent.

"Serious Health Condition" is a term that has been particularly vague. The FMLA defines a serious health condition as any illness, injury, impairment or physical or mental condition that involves either of the following:

• Inpatient care in a hospital, including any "period of incapacity" subsequent to or in connection with such inpatient care.
• Continuing treatment by a health care provider.

Continuing treatment is defined in the FMLA's interpretive regulations to include one or more of the following:

• Any period of incapacity due to pregnancy or prenatal care.
• A permanent or long-term period of incapacity due to a condition for which treatment may not be effective.
• Any period of absence to receive multiple treatments for a condition that would likely result in a period of incapacity of more than three consecutive calendar days if it were not treated.
• A period of incapacity of more than three consecutive calendar days that involves treatment of two or more times by a health care provider or, alternatively, requires treatment by a health care provider on only one occasion but results in a "regimen of continuing treatment" under the supervision of the health care provider.

A "regimen of continuing treatment" includes only those treatments that cannot be initiated without a visit to a health care provider, such as taking prescription drugs. It does not include taking over-the-counter medication; nor does it include therapy such as bed rest, drinking fluids and exercise.

The FMLA regulations state that, as a general rule, ailments such as the common cold, the flu, earaches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems and periodontal disease are not serious health conditions.

Court cases have provided a broad definition the term "serious health condition." For example, courts have held that a number of arguably less serious conditions may be covered by the FMLA, including depression, peptic ulcers, morning sickness, bronchitic asthma, migraine headaches, sickle cell disease, post-menopausal vaginal bleeding and lumbar strains.

In Thorson v. Gemini Inc. (998 F. Supp. 1034, N.D. Iowa 1998), the court ruled that an employee with an upset stomach and minor ulcer was entitled to FMLA leave. The court rejected the employer's argument that FMLA regulations state that ulcers normally are not covered by the act. Instead, the court determined, the critical issue is whether or not the employee visited her physician and missed more than three days of work on doctor's orders. Because the employee missed four days of work and saw her physician twice during the four-day period, the law protected the leave.

On the other hand, courts have dismissed claims for FMLA leave that involved carpal tunnel syndrome, hemotochezia (passage of bloody spots), treatment by a psychiatrist for sexual molestation, poison ivy, eczema, dental treatments, minor back injuries, adjustment to the death of a loved one, the flu and shortness of breath accompanied by chest pain. In particular, dental treatments and adjustment to the death of a loved one have not fared well in court.

Final Notes:

An employee is required to tell his/her supervisor why he/she needs time off of work. The supervisor (with the help of Human Resources) must then determine if the leave qualifies under FMLA. The employee is required to give sufficient detail of the leave to enable the company to make the proper determination. The employer can make follow-up inquiries and request a medical certification (it is recommended that a medical certification be a standard and required part of the family leave request process). This reinforces the need to train managers to alert Human Resources of a possible family leave request.