An employee missed work — Is it FMLA leave?
We get quite a few questions regarding how many absences an employee must have for an employer’s obligations kick in under the Family and Medical Act (FMLA).
Questions like:
- “Our receptionist missed three days of work this week. Should this person get FMLA?”
- “The machinist got the flu and was sick Friday, Saturday, and Sunday. Does that qualify for FMLA?”
- “Our dispatcher called in sick two days last week and one day this week. Is that FMLA?”
The answer we often give is, “It depends.” Essentially, it depends upon whether the employee or family member has a “serious health condition” as defined under the FMLA.
What is a serious health condition?
Many employers want a list of medical conditions to refer to when determining if an absence qualifies (or doesn’t) as FMLA leave. Unfortunately, a list like that doesn’t exist.
To figure out if an employee (or family member) has a qualifying medical reason for FMLA leave, employers must consider several factors (assuming the employee is eligible for leave).
An FMLA serious health condition is an:
- Illness,
- Injury,
- Impairment, or
- Physical or mental condition.
The condition must involve inpatient care or continuing treatment by a health care provider.
What does inpatient care mean?
When an employee calls off work for a medical reason (their own or that of a family member), first determine if inpatient care was involved — this is an overnight stay in a hospital or some kind of medical facility (e.g., employee had an appendectomy).
If the person did not stay overnight in a medical facility, then look at how many days the employee (or family member) has been incapacitated and if they have been receiving treatment related to the condition.
What does continuing treatment mean?
Continuing treatment involves a period of incapacity (i.e., cannot perform normal daily activities) of more than three consecutive, full calendar days, plus subsequent treatment (such as a doctor appointment) that also involves:
- Treatment two or more times within 30 days of the first day of incapacity by a health care provider, or
- Treatment once, resulting in a regimen of continuing treatment (like a prescription).
Note — The first treatment must happen within seven days of the first day of incapacity.
When does the “more than three days” rule NOT apply?
It’s important to note that an employee (or family member) does not need to be incapacitated for more than three consecutive days when the condition is pregnancy or for prenatal care — any period of incapacity counts in these cases.
Similarly, for chronic conditions (like asthma), which continue for an extended amount of time, any period of incapacity or treatment for the condition qualifies — an incapacity doesn’t have to be more than three consecutive days. However, for chronic conditions, the employee (or family member) must receive treatment two or more times per year to qualify for FMLA leave.
The “more than three days” incapacity rule also doesn’t apply to those with a permanent or long-term condition in which treatment may not be effective (think end-of-life cases). It also doesn’t apply to those who receive multiple treatments for conditions that would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of treatment (e.g., kidney dialysis).
Key to remember: Employers often want a list of medical conditions that qualify for FMLA leave protections; however, it doesn’t exist. Instead, employers must consider how long an employee (or family member) is incapacitated and if treatment is involved, among other considerations, and apply the definition.
