(a) For purposes of FMLA, ``serious health condition'' entitling an
employee to FMLA leave means an illness, injury, impairment, or physical
or mental condition that involves:
(1) Inpatient care (i.e., an overnight stay) in a hospital, hospice,
or residential medical care facility, including any period of incapacity
(for purposes of this section, defined to mean inability to work, attend
school or perform other regular daily activities due to the serious
health condition, treatment therefor, or recovery therefrom), or any
subsequent treatment in connection with such inpatient care; or
(2) Continuing treatment by a health care provider. A serious health
condition involving continuing treatment by a health care provider
includes any one or more of the following:
(i) A period of incapacity (i.e., inability to work, attend school
or perform other regular daily activities due to the serious health
condition, treatment therefor, or recovery therefrom) of more than three
consecutive calendar days, and any subsequent treatment or period of
incapacity relating to the same condition, that also involves:
(A) Treatment two or more times by a health care provider, by a
nurse or physician's assistant under direct supervision of a health care
provider, or by a provider of health care services (e.g., physical
therapist) under orders of, or on referral by, a health care provider;
or
(B) Treatment by a health care provider on at least one occasion
which results in a regimen of continuing treatment under the supervision
of the health care provider.
(ii) Any period of incapacity due to pregnancy, or for prenatal
care.
(iii) Any period of incapacity or treatment for such incapacity due
to a chronic serious health condition. A chronic serious health
condition is one which:
(A) Requires periodic visits for treatment by a health care
provider, or by a nurse or physician's assistant under direct
supervision of a health care provider;
(B) Continues over an extended period of time (including recurring
episodes of a single underlying condition); and
(C) May cause episodic rather than a continuing period of incapacity
(e.g., asthma, diabetes, epilepsy, etc.).
(iv) A period of incapacity which is permanent or long-term due to a
condition for which treatment may not be effective. The employee or
family member must be under the continuing supervision of, but need not
be receiving active treatment by, a health care provider. Examples
include Alzheimer's, a severe stroke, or the terminal stages of a
disease.
(v) Any period of absence to receive multiple treatments (including
any period of recovery therefrom) by a health care provider or by a
provider of health care services under orders of, or on referral by, a
health care provider, either for restorative surgery after an accident
or other injury, or for a condition that would likely result in a period
of incapacity of more than three consecutive calendar days in the
absence of medical intervention or treatment, such as cancer
(chemotherapy, radiation, etc.), severe arthritis (physical therapy),
kidney disease (dialysis).
(b) Treatment for purposes of paragraph (a) of this section includes
(but is not limited to) examinations to determine if a serious health
condition exists and evaluations of the condition. Treatment does not
include routine physical examinations, eye examinations, or dental
examinations. Under paragraph (a)(2)(i)(B), a regimen of continuing
treatment includes, for example, a course of prescription medication
(e.g., an antibiotic) or therapy requiring special equipment to resolve
or alleviate the health condition (e.g., oxygen). A regimen of
continuing treatment that includes the taking of over-the-counter
medications such as aspirin, antihistamines, or salves; or bed-rest,
drinking fluids, exercise, and other similar activities that can be
initiated without a visit to a health care provider, is not, by itself,
sufficient to constitute a regimen of continuing treatment for purposes
of FMLA leave.
(c) Conditions for which cosmetic treatments are administered (such
as most treatments for acne or plastic
surgery) are not ``serious health conditions'' unless inpatient hospital
care is required or unless complications develop. Ordinarily, unless
complications arise, the common cold, the flu, ear aches, upset stomach,
minor ulcers, headaches other than migraine, routine dental or
orthodontia problems, periodontal disease, etc., are examples of
conditions that do not meet the definition of a serious health condition
and do not qualify for FMLA leave. Restorative dental or plastic surgery
after an injury or removal of cancerous growths are serious health
conditions provided all the other conditions of this regulation are met.
Mental illness resulting from stress or allergies may be serious health
conditions, but only if all the conditions of this section are met.
(d) Substance abuse may be a serious health condition if the
conditions of this section are met. However, FMLA leave may only be
taken for treatment for substance abuse by a health care provider or by
a provider of health care services on referral by a health care
provider. On the other hand, absence because of the employee's use of
the substance, rather than for treatment, does not qualify for FMLA
leave.
(e) Absences attributable to incapacity under paragraphs (a)(2) (ii)
or (iii) qualify for FMLA leave even though the employee or the
immediate family member does not receive treatment from a health care
provider during the absence, and even if the absence does not last more
than three days. For example, an employee with asthma may be unable to
report for work due to the onset of an asthma attack or because the
employee's health care provider has advised the employee to stay home
when the pollen count exceeds a certain level. An employee who is
pregnant may be unable to report to work because of severe morning
sickness.
