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FMLA Trouble Spots: "Serious Health Condition" and "Medical Certification"
 
What is a "serious health condition"? What are the rules regarding "medical certification"? As an HR practitioner, you will recognize these as two of the most frequently asked FMLA questions. Here is the support you need for your answers.

The Family and Medical Leave Act (FMLA) is at the top of almost everyone's list of difficult employment laws to administer. In a 1999 survey published by the Society for Human Resource Management, 63% of the respondents said they were often confused about how to handle FMLA leave. This response is in sharp contrast to the Department of Labor's (DOL) repeated assurances that the law "works well" and is easy to implement. The most frequent questions on our subscriber HR Answerline involve the FMLA and, in particular, the definition of a serious health condition and the handling of the medical certification process. In addressing these two issues, the Editors have analyzed the FMLA statute, the DOL regulations, and recent court cases to provide some practical answers to your difficult questions.

1. Is there a precise definition of a "serious health condition"?

No. If you are having trouble determining when an employee has a serious health condition, you are not alone. Essentially, this determination is made on a case-by-case basis. The DOL regulations attempt to define a serious health condition but, judging by the number of court cases involving this issue, they do not do a very good job. The FMLA broadly describes a serious health condition as an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider. 

2. Inpatient care is readily understood, but what does "continuing treatment" mean?

The term "continuing treatment" is difficult for employers to interpret. The DOL regulations describe five different scenarios, including:

  • a period of incapacity of more than three consecutive calendar days involving two or more treatments, by or under the orders of a health care provider, or treatment by a health care provider on at least one occasion that results in a supervised regimen of continuing treatment (for example, prescription medications or specialized therapy);
  • pregnancy (including severe morning sickness) and time needed for prenatal visits;
  • a chronic health condition, such as asthma, diabetes, or epilepsy;
  • a long-term condition such as Alzheimer's, a severe stroke, or the terminal stages of a disease; and
  • restorative surgery after an accident or other injury, or a condition that is likely to result in a period of incapacity of more than three consecutive calendar days if left untreated, such as physical therapy for severe arthritis or chemotherapy for cancer.

(Note: any period of incapacity that is the result of pregnancy or a chronic serious health condition, such as morning sickness or an asthma attack, qualifies for FMLA leave even if the employee does not receive treatment from a health care provider or the absence does not last more than three days.)

3. Is there any indication in the regulations of what is not considered a serious health condition?

Yes. Conditions that only require taking over-the-counter medications, such as aspirin and antihistamines, do not qualify. In addition, the following are not considered serious health conditions:

  • conditions that require drinking plenty of fluids or any similar activities that can be initiated without a visit to a health care provider, unless something more serious is involved;
  • routine dental problems and periodontal disease;
  • the common cold, flu (but see Question 4, below), earache, upset stomach, minor ulcer, and headache (other than migraine); and
  • cosmetic treatments (such as for acne or plastic surgery), unless inpatient hospital care is required or complications develop.

4. What are some examples of serious health conditions, according to recent court cases and DOL opinions?

The courts and the DOL have found the following medical problems to be serious health conditions:

  • a peptic ulcer, even though it caused only short periodic absences, because the employee was under the continuing treatment of a health care provider and the condition was chronic (Victorelli v. Shadyside Hospital, 128 F.3d 184 (3rd Cir. 1997));
  • chicken pox, because the employee received treatment for it twice by a doctor, the doctor told the employee that he could not work for more than three days, and he was contagious while on leave (George v. Associated Stationers, 932 F. Supp. 1012 (N.D. Ohio 1996));
  • various ailments experienced all at one time, including hyperthyroidism, back pain, sinusitis, high blood pressure, infected cyst, and depression, although the court found that no one symptom by itself would qualify (Price v. City of Fort Wayne, 117 F.3d 1022 (7th Cir. 1997)); 
  • asthma and migraines could be serious health conditions even though treatment for the conditions may be brief (DOL Advisory Opinion, 7/13/95); and
  • the cold or flu may be a serious health condition, if the individual is incapacitated for more than three consecutive days and receives continuing treatment by a health care provider as defined in the regulations (DOL Advisory Opinion, 12/12/96).

The following generally were not found to be serious health conditions:

  • food poisoning, since it did not require inpatient or continuing care (Oswalt v. Sara Lee Corp., 74 F.3d 91 (5th Cir. 1996)); and
  • a neck injury, even though the employee visited a doctor and attended physical therapy sessions, since there was no evidence that medical treatment was necessary, and the employee was not required to be absent for more than three consecutive days (Haefling v. UPS, 169 F.3d 494 (7th Cir. 1999)).

5. Under what circumstances may you require a medical certification?

You may require a medical certification when employees request leave for their own serious health condition or the serious health condition of a parent, spouse, or child. However, you may not require any type of medical certification for leaves taken to care for a newborn child or a child that is being placed with the employee for adoption or foster care.

6. What information may be required in the certification? 

The FMLA regulations state that the medical certification must relate only to the serious health condition that is causing the current need for leave. In other words, you cannot ask for information about the person's general health or any other medical conditions. You may ask (among other things) about the medical facts that support that there is a serious health condition, when the condition began, its probable duration (including the duration of leave time needed), whether leave must be taken intermittently, and whether the employee is unable to work. 

The DOL has published a medical certification form, Form WH-380, that you may use to obtain medical certification. Although use of the form is optional, the regulations state that an employer generally may not require more information than what is asked for in the sample form. Because of this, you should consider using the sample form to ensure compliance. Employers that choose to prepare their own medical certification forms should consult with legal counsel because the medical certification requirements are so complex.


7. What are the time frames within which you should request medical certification? 

According to the FMLA regulations, you should request medical certification at the time the employee asks for leave or within the next two business days. If the leave is foreseeable, the employee ordinarily must provide the certification before the leave begins. If the leave is not foreseeable, certification should be requested within two business days after the leave begins, and you may require the employee to provide the certification within 15 calendar days after the request, or as soon as reasonably possible. You may also request certification at a later date if you have reason to question the appropriateness of the leave or its duration.

8. What if the employee fails to provide medical certification?

If the employee does not provide proper medical certification within the required time period, you may delay the leave until the certification is provided. If the employee never provides the certification, he is not considered to be on FMLA leave. However, you may still have to grant FMLA leave if the employee has made diligent, good faith efforts to obtain the medical certification from the health care provider but has been unable to get it.

9. Do you have to accept the employee's medical certification as the final word?

If you have some reason to doubt the validity of the certification, you have two options:

  • Even though you may not request additional information from the employee's health care provider, if the employee gives permission, a provider representing the employer may contact the employee's provider to clarify the medical certification and verify its authenticity.
  • Alternatively, you may require a second opinion from an independent health care provider that you select (but who does not regularly work for the employer). The employer is responsible for this expense. If the two opinions conflict, the employer may pay for a third and final binding medical opinion.

10. Can you require additional medical certifications during the leave?

Yes. You may require additional medical certifications of the continuing need for leave, but not more often than every 30 days, unless extenuating circumstances exist.

This article is not intended as legal advice. Readers are encouraged to seek appropriate legal or other professional advice.


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