FMLA FMLA Serious Health Condition Criteria 2 — Questions and Answers
Question 1: An employee takes 3 days off with the flu but only sees a doctor once. Does this qualify as a serious health condition?
- Yes, because the employee was incapacitated for 3 consecutive days
- No, because 3 days of incapacity requires at least one treatment visit within 7 days AND a follow-up within 30 days or a continuing regimen (Correct answer)
- Yes, as long as the doctor prescribes medication
- No, the flu can never qualify as a serious health condition
Correct answer: No, because 3 days of incapacity requires at least one treatment visit within 7 days AND a follow-up within 30 days or a continuing regimen
Three days of incapacity alone is not sufficient; there must also be a first treatment visit within 7 days AND either a second visit within 30 days or a continuing treatment regimen. One visit without follow-up is insufficient.
29 CFR 825.115(a) requires more than 3 consecutive calendar days of incapacity PLUS treatment that includes: (1) a first visit within 7 days of onset; and (2) either a second in-person visit within 30 days OR a continuing regimen of treatment. A single doctor visit without subsequent treatment generally does not meet the continuing treatment standard.
Question 2: An employee has chronic migraines requiring prescription medication and a physician visit twice per year. They miss one day per month due to attacks. Does this qualify for intermittent FMLA leave?
- No, because each absence is only one day
- Yes, as a chronic serious health condition requiring periodic treatment at least twice per year (Correct answer)
- Only if the employee is incapacitated for 3 consecutive days during each migraine
- Only with specialist certification from a neurologist
Correct answer: Yes, as a chronic serious health condition requiring periodic treatment at least twice per year
Chronic migraines requiring periodic physician visits at least twice per year are a classic example of a chronic serious health condition, entitling the employee to intermittent FMLA leave for each episode.
29 CFR 825.115(c) expressly allows intermittent leave for chronic conditions without requiring a 3-day incapacity for each episode. The qualifying threshold is treatment at least twice per year over an extended period. Migraines are specifically recognized in DOL guidance as a qualifying chronic condition.
Question 3: Which of the following best describes a permanent or long-term serious health condition under FMLA?
- Any condition lasting more than 6 months
- A condition for which treatment may not be effective, such as Alzheimer's disease, under the continuing supervision of a health care provider (Correct answer)
- Any condition requiring surgery
- A condition that prevents all work activity permanently
Correct answer: A condition for which treatment may not be effective, such as Alzheimer's disease, under the continuing supervision of a health care provider
Permanent or long-term conditions such as Alzheimer's, ALS, and terminal cancer for which treatment may not be effective but that require continuing supervision by a health care provider qualify as serious health conditions.
29 CFR 825.115(d) defines permanent or long-term conditions as those involving incapacity due to a condition for which treatment may not be effective. For these conditions, the employee or family member may be under the continuing supervision of, but need not be receiving active treatment by, a health care provider.
Question 4: An employee is absent to receive chemotherapy treatments on an outpatient basis every two weeks. Which category of serious health condition applies?
- Chronic condition requiring periodic visits at least twice per year
- Conditions requiring multiple treatments for restorative surgery or conditions that would result in incapacity without treatment (Correct answer)
- Inpatient care requiring overnight hospitalization
- Continuing treatment with 3-day incapacity requirement
Correct answer: Conditions requiring multiple treatments for restorative surgery or conditions that would result in incapacity without treatment
Chemotherapy administered to prevent a condition that would be permanently incapacitating without treatment falls under the multiple treatments category of serious health condition.
29 CFR 825.115(e) covers conditions requiring multiple treatments by a health care provider for conditions that would likely result in a period of incapacity of more than 3 consecutive days absent medical treatment. The recurring treatment absences qualify for FMLA leave even when each absence is less than 3 consecutive days.
Question 5: Which family relationships are covered under federal FMLA for caring for a family member with a serious health condition?
- Spouse, parent, and child only (Correct answer)
- Spouse, parent, child, sibling, and grandparent
- Spouse, child, parent, and parent-in-law
- Any family member living in the employee's household
Correct answer: Spouse, parent, and child only
Federal FMLA covers leave to care for a spouse, parent, or child. Siblings, grandparents, and in-laws are NOT covered under federal FMLA, though some state laws extend coverage.
29 CFR 825.122 defines covered family members for serious health condition leave as: (1) spouse including same-sex spouses; (2) son or daughter under 18, or 18 and older if incapable of self-care due to disability; and (3) parent. The definition does NOT include grandparents, siblings, parents-in-law, or domestic partners unless state law provides otherwise.
Question 6: An employee's spouse has multiple sclerosis, well-controlled with medication. The employee occasionally needs a few hours off to drive the spouse to medical appointments. Does this qualify for intermittent FMLA leave?
- No, because the condition is well-controlled
- Yes, because multiple sclerosis is a chronic serious health condition and the spouse is a covered family member (Correct answer)
- Only if the spouse is hospitalized
- Only if the employee is the only available caregiver
Correct answer: Yes, because multiple sclerosis is a chronic serious health condition and the spouse is a covered family member
MS is a chronic serious health condition, and a spouse is a covered family member. The employee may take intermittent FMLA leave to provide care, including transportation to medical appointments, even when the condition is controlled.
29 CFR 825.124 defines needed to care for a family member to include both physical and psychological care as well as arranging third-party care such as transportation to medical appointments. Control of the condition through medication does not disqualify it as a serious health condition, and the employee need not be the only available caregiver.
FMLA FMLA Serious Health Condition Criteria 2
An employee takes 3 days off with the flu but only sees a doctor once.
Does this qualify as a serious health condition?