Legal

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Wednesday, March 31, 2004

Illness, injury and the FMLA
with Jim Walsh

J. Walsh

Q. My respiratory therapist is requesting leave under the Family and Medical Leave Act (FMLA) for what she states is a “serious” health condition. Should I ask for her medical records? What does FMLA consider “serious”?

A. She does not have to provide medical records. FMLA regulations allow, but do not require, employers to ask for medical certification when employees seek leave for serious health conditions of themselves or an immediate family member. (Note: You cannot require medical certification for the birth, adoption, or foster placement of a child.)

A serious health condition is defined as an “illness, injury, impairment, or physical or mental condition” that involves inpatient care in a hospital, hospice, residential medical care facility or continuing treatment by a provider.

“Continuing treatment” includes:

- A period of incapacity more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves: treatment two or more times by a provider; or treatment by a provider on at least one occasion that results in a regimen of continued treatment.

- A period of incapacity due to pregnancy, or for prenatal care.

- A period of incapacity or treatment for a “chronic” serious health condition that requires periodic visits for treatment by a provider, continues over an extended period, and may cause episodic, rather than a continuing, period of incapacity (e.g., asthma, diabetes, epilepsy).

Illnesses not considered “serious health conditions” include the common cold, earaches, stomachaches, ulcers, headaches other than migraine and routine dental problems. However, a Department of Labor (DOL) opinion letter revised the definition. According to the DOL, an absence counts under FMLA if it consists of an incapacitation of three consecutive calendar days that also involves treatment two or more times by a provider. Thus, minor illnesses may still qualify.

Jim Walsh is the president of VGM Management. He can be reached at 319-274-6510.

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