(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 inpatient care as defined in Sec.
825.114 or continuing treatment by a health care provider as defined in
Sec. 825.115.
(b) The term "incapacity" means inability to work, attend school
or perform other regular daily activities due to the serious health
condition, treatment therefore, or recovery therefrom.
(c) The term "treatment" 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. 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.
(d) 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 or
allergies may be serious health conditions, but only if all the
conditions of this section are met.
[73 FR 68079, Nov. 17, 2008]
