FMLA-60 — Definition of "Serious Health Condition"

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

May 2, 1995 FMLA-60

Dear
Name*,

This is in response to your letter forwarding correspondence from
Name*, concerning the Family and
Medical Leave Act of 1993 (FMLA).
Name* expresses concern with FMLA's definition of serious health
condition, particularly chronic conditions, as summarized in an association bulletin, and its impact on his
employer's absence control program. The definition of serious health condition was set forth in FMLA's
final regulations, published in the Federal Register on January 6, 1995 and effective on April 6, 1995.

In enacting the law, Congress stated in Section 2, that there is inadequate job security for employees who
have serious health conditions that prevent them from working for temporary periods. Congress also
stated in Section 2 that it is the purpose of FMLA to entitle employees to take reasonable leave for
medical reasons. Pursuant to Sections 101(11)(A) and (B) , a serious health condition is defined as an
illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital,
hospice, or residential medical care facility; or continuing treatment by a health care provider.

The legislative history further refines the intent of Congress regarding the meaning of "serious health
condition." In this context,".... serious health condition is intended to cover conditions or illnesses that
affect an employee's health to the extent that he or she must be absent from work on a recurring basis or
for more than a few days for treatment or recovery.(emphasis added) With respect to a child, spouse or
parent, the term serious health condition is intended to cover conditions or illnesses that affect the health
of the child, spouse or parent such that he or she is similarly unable to participate in school or in his or her
regular daily activities."

In developing the regulation's definition of a serious health condition, the Department relied upon the
statute and the legislative history. Where inpatient care is not involved, the regulations require the
absence from work, or from school or incapacity in performing other daily activities to be greater than
three calendar days and to include continuing treatment by (or under the supervision of) a health care
provider. Continuing treatment includes (i) two or more visits to a health care provider; (ii) two or more
treatments by a health care provider on referral from, or under the direction of, a health care provider; or
(iii) a single visit to a health care provider that results in a regimen of continuing treatment under the
supervision of the health care provider as for example, a course of medication or therapy to resolve the
health condition.

Because the statute (Section 102 (b)) permits intermittent leave or leave on a "reduced leave schedule" in
cases of medical necessity, it is also clear that the Act contemplates that employees would be entitled to
FMLA leave in some cases because of doctor's visits or therapy due to a condition that need not be
incapacitating at that point. The legislative history explains that to receive treatment for early stage cancer
I to receive physical therapy after a hospital stay or because of severe arthritis, etc., or for prenatal care
are covered by the Act.

The final regulations clarify the interim final regulations' definition of serious health condition for chronic
conditions and pregnancy. It is recognized that certain chronic conditions, such as asthma and diabetes,
that continue over extended periods of time, often without affecting day-to-day ability to work or perform
other activities, may cause episodic periods of incapacity of less than three days. Although persons with
such underlying conditions generally visit a health care provider periodically, when subject to a flare-up or
other incapacitating episode, the appropriate and effective course of action may be to stay home and to
self-treat. The definition has been revised to cover such chronic conditions as serious health conditions
under FMLA, even when the individual episodes of incapacity are not of more than three days duration.
Neither the interim regulations nor final regulations require a visit to the health care provider for each
absence associated with a chronic serious health condition. (See Regulations 29 CFR 825.114)

Name* is correct in stating that FMLA leave may not be the basis of disciplinary action. Pursuant to
Section 105 of the statute and Regulations 29 CFR 825.220(c), employers are prohibited from
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U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

discriminating against employees who use FMLA leave. Employers cannot use the taking of FMLA leave
as a negative factor in employment actions, such as promotions or disciplinary actions; nor can FMLA
leave be counted under "no fault" attendance policies.

In passing FMLA, Congress also stated that the purposes of the Act were to be accomplished "in a
manner that accommodates the legitimate interests of employers." Employees are required to consult
with employers prior to the scheduling of planned medical treatment where intermittent FMLA leave will
be used in order to schedule such treatment, if possible, so that it will not unduly disrupt the employer's
operations. Employers also may require a medical certification from the employees, or the employee's
immediate family member's treating physician, which can provide medical facts about the condition and
the duration of treatment and recovery. Moreover, the employer may request certification at some later
date if the employer has reason to question the appropriateness of the leave or its duration. If the
employer questions the validity of the initial medical certification, the employer may require the employee
to obtain a second medical opinion, and possibly a third if necessary, at the employer’s expense.
Employers also have the right to request recertification in the case of pregnancy, chronic conditions, or
permanent/ long-term conditions under the supervision of a health care provider every 30 days or at any
reasonable interval based on the circumstances of the case. (See 29 CFR 825.305 -308)

If the employee fails to provide in a timely manner a requested medical certification to substantiate the
need for FMLA leave for a serious health condition, the employer may delay FMLA leave until the
employee submits the certificate. If the employee is unable to produce the medical certification, the leave
is not FMLA leave and the employee is not protected by the Act. (See 29 CFR 825.301(b)(ii) and 312(b) .)
While we appreciate
Name* concerns, we believe that the regulatory definition of a serious health
condition is consistent with the statute and legislative history. We also believe that the regulations provide
employers the means to deter employees from improperly using FMLA leave. A copy of the final
regulations is enclosed for
Name* information.

If I may be of further assistance to you, please do not hesitate to contact me.

Sincerely,

Daniel F. Sweeney
Deputy Assistant Administrator

Enclosure

cc: Washington, D.C., Office

* Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. 552 (b)(7).
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