Does a serious cold qualify as a serious health condition under the Family and Medical Leave Act (FMLA) and/or its state law counterpart, the California Family Rights Act (CFRA)? How about the flu? Leave of absence laws were established to protect employees with serious health conditions; do colds and the flu measure up?
Generally, unless complications arise, the common cold, the flu, earaches, upset stomach, and headaches (other than migraines) are examples of conditions that usually do not meet the definition of a serious health condition and do not qualify for family and medical leave, says attorney Susan E. Schoenfeld, a BLR senior legal editor (BLR is CER’s parent company).
However, she adds, any one of these conditions may rise to the level of a covered serious health condition if all the other requirements are met.
Defining ‘Serious’ Health Condition
The definition of a “serious health condition” under the FMLA 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.
You may think you’re up on all the nuances of family and medical leave-related issues, but there’s a lot to keep track of. Get on the right track for 2015 with our 1-day FMLA/CFRA Master Class specifically for California employers. Learn more.
Defining ‘Continuing Treatment’
The 2009 final FMLA regulations changed the definition of what qualifies as “continuing treatment” by a healthcare provider. Under the regulations, 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 (one that requires periodic visits, at least twice a year, for treatment which continues over an extended period of time, and which may cause episodic rather than a continuing period of incapacity (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).
For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack or because the employee’s healthcare provider has advised the employee to stay home when the pollen count exceeds a certain level. An employee who is pregnant may be unable to report to work because of severe morning sickness.
Incapacity. The term “incapacity” means inability to work, attend school, or perform other regular daily activities due to the serious health condition, treatment, or recovery.
Treatment. Covered “treatment” includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations.
Regimen. A regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (e.g., oxygen).
A regimen of continuing treatment that includes the taking of over-the-counter medications (e.g., aspirin, antihistamines, or salves) or bed rest, drinking fluids, exercise, and other similar activities, which can be initiated without a visit to a healthcare provider is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave.
2015 FMLA/CFRA Master Class for California Employers:
Overcome Compliance and Employee Leave Challenges
Coming to:
- San Jose: Thursday, April 9, 2015
- Sacramento: Thursday, April 30, 2015
- San Diego, Tuesday, May 12, 2015
- Los Angeles: Tuesday, June 23, 2015
Confusing regulations, numerous changes at both the legislative and regulatory levels, conflicting court decisions—plus the additional stress of complying with the California Family Rights Act (CFRA) … Feeling FMLA frustrated?
Now there’s help for HR and employers: 2015 FMLA/CFRA Master Class. Invest just 1 day to become even more proficient in FMLA/CFRA administration and handle questions from employees and top management with confidence and accuracy. You’ll get the very latest compliance tactics and enhance your advanced practitioner skill set when you attend this satisfaction-guaranteed event. Master Classes also qualify for continuing education credits.
You’ll learn:
- Recent Leave-Related Developments
- FMLA 911: Serious Health Conditions, Collecting Medical Information
- Military Family Leave
- FMLA/CFRA: Meeting Deadlines, Curbing Abuse, Avoiding Litigation
- Advanced FMLA/CFRA Issues
- Coordinating FMLA/CFRA with ADA, Workers’ Comp, and State Leave/Disability Laws
- And other new and continuing enforcement trends for 2015 and possible legislative changes on the horizon
Your faculty will also take you out of classroom mode, and help you address real-life situations that are relevant to today’s compliance challenges, including such scenarios as:
Scenario 1: You’ve been asked to terminate an employee for repeated violations of your organization’s absence policy. Just when you are about to do so, she requests FMLA leave. What’s the safest course of action, in light of a recent decision from an appeals court facing just such a question?
Scenario 2: An employee comes to you requesting FMLA leave to take care of a child born to his teen daughter. Under FMLA, who is considered a parent? The legal term is “loco parentis,” and it’s a hot issue right now both locally and nationally.
Scenario 3: An employee has an autistic son who repeatedly runs away from school in the middle of the day. She leaves work to search for him. Is this time eligible for FMLA intermittent leave protection?
Scenario 4: Your leave policy is much more generous than what’s required under FMLA, offering 6 months of leave for medical conditions. FMLA only requires 12 weeks. So why could terminating an employee whose leave demands exceed your benefit incur the scrutiny, even the legal challenge, of the EEOC?
Conference Details
Continental breakfast and registration begin at 7:30 a.m. The program begins at 8:30 a.m. and concludes at 4:30 p.m. There will be morning and afternoon breaks, and registrants will be on their own for lunch.
Master FMLA administration in just 1 day by participating in this all-new program
created just for California employers and HR management.
Download your copy of Notice Requirements for CFRA and FMLA: California Labor Laws today!