button Vol. 6
No. 2
Summer 2001


OSHA Revises Workplace Injury
and Illness
Reporting Rule.

line DOL Narrows Exemption for
Labor Relations Consultants.

line Interim Rules
Issued for Bush Executive Orders of Feb. 17th, 2001.

line FMLA: "Serious
Health Condition" Being Redefined.

line ADA: Medical Examinations / Inquiries Addressed by 3rd Circuit Court.
line Briefs
line Violence Updates (Briefs)

Braun Consulting News
News on Personnel, Labor Relations and Benefits

See our Archive Pages for Back Issues of Braun Consulting News!

button FMLA: "Serious Health Condition" Being Redefined.

Two recent federal appellate court rulings (4th and 8th U.S. Circuit Courts of Appeals) seem to be redefining what is meant by a "serious health condition" in terms of the Family and Medical Leave Act (FMLA). Both courts relied heavily on the definition of "serious health condition" outlined in the law (see App. I), the U.S. Department of Labor's (DOL) regulations (see App. II) and opinion letters (see App. IV) to make their rulings. Employers need to understand these definitions when administering their FMLA program.


The Family and Medical Leave Act (FMLA) (Section 101(11)) defines "serious health condition" as an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.

The DOL's regulations further provide that "continuing treatment by a health care provider" must include either (1) a period of incapacity lasting more than three consecutive calendar days and treatment two or more times by a health care provider, or (2) treatment by a health care provider on one occasion resulting in a regimen of continuing treatment under the provider's supervision (see App. II, 29 C.F.R. § 825.114(a)(2)(i)).

Continuing Treatment

This "continuing treatment" phrase seems to be the area where questions and disputes arise. Employees and employers differed about whether there was continuing treatment... and the court rulings seem to be rather broad in this respect. This leads, in effect, to an interpretation that lets more conditions in for coverage under the FMLA.

Back on Dec. 12, 1996 the department released an opinion letter ruling stating that "ordinarily, these health conditions would not meet the definition in 825.114(a)(2), as they would not be expected to last for more than three consecutive calendar days and require continuing treatment by a health care provider as defined in the regulations. If, however, any of these conditions met the regulatory criteria for a serious health condition, e.g., an incapacity of more than three consecutive calendar days that also involves qualifying treatment, then the absence would be protected by the FMLA" (see App. IV, FMLA-86).

Recent opinions point back to this ruling.

Both Circuit Courts Are In Agreement

Both the 4th and 8th U.S. Circuit Courts of Appeals have now ruled that relatively minor illnesses may be considered serious medical conditions. The 8th Circuit found that an employee with a viral infection was protected by the FMLA because her condition met the regulation's definition of "serious health condition."

The 4th Circuit Court held that an episode of the flu constituted an FMLA-qualifying serious health condition because the worker was incapacitated for more than three days and saw her doctor three times for treatment of the illness.

Bottom Line

The trend in Circuit Court Rulings seems to be that relatively minor ailments may qualify as serious health conditions under the FMLA, if the "ongoing treatment" clause applies.

Besides the rulings in the 4th & 8th Circuit Courts other recent opinions from the circuit courts on this topic: Cash v. Smith (Case No. 242), Caldwell v. Holland of Texas (Case No. 229) and Bailey v. Amsted Ind. Inc. (Case No. 167).

Employers may feel that Congress did not mean for the FMLA to cover absences resulting from the flu or similarly minor illnesses. However, the courts are making rulings that seem to be broadening and redefining what is considered a "serious health condition"... now including cases of the flu and viral infection as being covered.

Don't forget to check your State Laws. Several States have overlapping disability laws where the definition of "disability" is much more expansive covering sicknesses not covered by the Federal law. Check carefully before deciding whether to grant FMLA/Disability leave, and remember that the landscape is shifting.

5. ADA: Medical Examinations / Inquiries Addressed by 3rd Circuit Court. Next Page

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