January 7, 2011
It is unlikely that the FMLA would cover leave for hypnosis as part of a program to quit smoking. First, smoking is not an underlying serious health condition. The definition of a “serious health condition” includes an illness, injury, impairment, or physical or mental condition that involves either inpatient care (i.e., an overnight stay in a hospital, hospice, or residential care facility) or continuing treatment by a healthcare provider.
To qualify as “continuing treatment,” the condition must involve:
- A period of incapacity of more than 3 consecutive, full calendar days, and any subsequent treatment or period of incapacity for the same condition that also involves either:
- Treatment by a healthcare provider two or more times within 30 days of the first day of incapacity, unless extenuating circumstances exist, or
- Treatment by a healthcare provider at least once that results in a regimen of continuing treatment under the supervision of the healthcare provider (The requirement for treatment by a healthcare provider means an in-person visit to that healthcare provider. The first (or only) in-person treatment visit must take place within 7 days of the first day of incapacity.)
- Any period of incapacity because of pregnancy or prenatal care
- Any period of incapacity because of a chronic, serious condition (A chronic, serious health condition is one that requires periodic visits, at least twice a year, for treatment by a healthcare provider (e.g., asthma, diabetes, epilepsy)
- A period of incapacity that is permanent or long-term because of a condition for which treatment may not be effective (e.g., Alzheimer’s disease)
- Any period of absence to receive multiple treatments by a healthcare provider (e.g., for reconstructive surgery after an accident or injury) or for a condition that would likely result in a period of incapacity of more than 3 consecutive, full days if untreated, such as for cancer (chemotherapy) or kidney disease (dialysis).
Second, it is unlikely that a hypnotist would be considered a healthcare provider under the FMLA. As you are aware, FMLA’s regulations define a “health care provider” as a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the state in which the doctor practices or any other person determined by the DOL to be capable of providing healthcare services.
Others “capable of providing healthcare services” include podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as shown by X ray to exist) who are authorized to practice in the state and perform within the scope of their practices as defined under state law. Also included are nurse practitioners, nurse-midwives, clinical social workers, and physician assistants who are authorized to practice under state law and who perform within the scope of their practices as defined under state law, and Christian Science practitioners listed with The Church of Christ, Scientist, in Boston, Massachusetts.
FMLA’s definition of a covered healthcare provider also includes any healthcare provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification to substantiate a claim for benefits.
Hypnotists are not included in the definition of healthcare provider or as any of those “capable of providing healthcare services.” Therefore, even if the employee’s smoking qualified as a serious health condition it is unlikely that visits to a hypnotist would qualify under FMLA (unless hypnotism was covered by an employer’s group health plan).