A serious health condition involving continuing treatment by a
health care provider includes any one or more of the following:
(a) Incapacity and treatment. A period of incapacity of more than
three consecutive, full calendar days, and any subsequent treatment or
period of incapacity relating to the same condition, that also
involves:
(1) Treatment two or more times, within 30 days of the first day of
incapacity, unless extenuating circumstances exist, by a health care
provider, by a nurse 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
(2) 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.
(3) The requirement in paragraphs (a)(1) and (2) of this section
for treatment by a health care provider means an in-person visit to a
health care provider. The first (or only) in-person treatment visit
must take place within seven days of the first day of incapacity.
(4) Whether additional treatment visits or a regimen of continuing
treatment is necessary within the 30-day period shall be determined by
the health care provider.
(5) The term "extenuating circumstances" in paragraph (a)(1) of
this section means circumstances beyond the employee's control that
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prevent the follow-up visit from occurring as planned by the health
care provider. Whether a given set of circumstances are extenuating
depends on the facts. For example, extenuating circumstances exist if a
health care provider determines that a second in-person visit is needed
within the 30-day period, but the health care provider does not have
any available appointments during that time period.
(b) Pregnancy or prenatal care. Any period of incapacity due to
pregnancy, or for prenatal care. See also Sec. 825.120.
(c) Chronic conditions. Any period of incapacity or treatment for
such incapacity due to a chronic serious health condition. A chronic
serious health condition is one which:
(1) Requires periodic visits (defined as at least twice a year) for
treatment by a health care provider, or by a nurse under direct
supervision of a health care provider;
(2) Continues over an extended period of time (including recurring
episodes of a single underlying condition); and
(3) May cause episodic rather than a continuing period of
incapacity (e.g., asthma, diabetes, epilepsy, etc.).
(d) Permanent or long-term conditions. 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.
(e) Conditions requiring multiple treatments. 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,
for:
(1) Restorative surgery after an accident or other injury; or
(2) A condition that would likely result in a period of incapacity
of more than three consecutive, full calendar days in the absence of
medical intervention or treatment, such as cancer (chemotherapy,
radiation, etc.), severe arthritis (physical therapy), or kidney
disease (dialysis).
(f) Absences attributable to incapacity under paragraph (b) or (c)
of this section qualify for FMLA leave even though the employee or the
covered 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 consecutive, full calendar 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.
[73 FR 68079, Nov. 17, 2008]
