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FMLA Definitions

What is a serious health condition/and continuing treatment by a health care provider?

What does it mean that an employee is needed to care for a family member?

What does it mean that the employee is unable to perform the essential functions of her/his position?

What does "adult child" mean for the purposes of FMLA qualified exigency or the purposes of military care giver leave?

What is a health care provider?

What is the definition of a "qualified exigency" under the NDAA for Fiscal Year 2010 (H.R. 2647)?

What is the definition of military caregiver leave under the NDAA for Fiscal Year 2010 (H.R. 2647)?

What is the definition of "next of kin"?

What is a serious health condition/and continuing treatment by a health care provider?

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:

a. 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:

i. 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

1. Treatment, which requires an in-patient visit occuring within seven days of the first day of incapacity, by a health care provider, on at least one occasion which results in a regimen of continuing treatment (defined as two or more times within a 30 day period unless extenuating circumstance exist) 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 (defined as two or more treatments a year) 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), or 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 following are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave:

the common cold,

the flu,

ear aches,

upset stomach,

minor headaches,

minor ulcers,

routine dental problems, or

periodontal disease.

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 may be a serious health condition, 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. However, nothing in the FMLA protects the employee from discipline, including termination for the violation of an established, consistently enforced substance abuse policy.

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.

F. Departments must require medical certification of a serious health condition .

What does it mean that an employee is needed to care for a family member?

It means that because of a serious medical condition, the family member is unable to care for her/his own basic medical, hygienic, or nutritional needs or safety, or is unable to transport him/herself to the doctor. The term also includes providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition. The term also includes situations where the employee may be needed to fill in for others who are caring for the family member, or to make arrangements for changes in care, such as transfer to a nursing home. An employee's intermittent leave or a reduced leave schedule may also be necessary when a family member's condition is intermittent or where the employee is only needed intermittently - such as where other care is normally available, or care responsibilities are shared with another member of the family or a third party.

What does it mean that the employee is unable to perform the essential functions of her/his position?

It means the health care provider finds the employee is unable to work at all or is unable to perform any one or more of the essential functions of her/his position within the meaning of the Americans with Disabilities Act (ADA). MSU has the option to provide a statement of the essential functions of the employee's job for the health care provider to review.

What does "adult child" mean for the purposes of FMLA qualified exigency or military caregiver leave?

The service member need not be a child. An employee can take FMLA leave for care of a child with a serious health condition so long as that child is a minor or, if the child is an adult, the child meets the test of being both incapable of self-care and "disabled" as defined by the Americans With Disabilities Act. Under the amendments, an employee may take FMLA qualified exigency or military caregiver leave for care of a child even if the child is an adult and does not meet the "self-care" and "disabled" tests.

What is a health care provider?

A health care provider is:

a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the state in which the doctor practices;
podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the state and performing within the scope of their practice as defined under state law;
nurse practitioners, nurse-midwives and clinical social workers who are authorized to practice under state law and who are performing within the scope of their practice as defined under state law;
physician's assistants who are licensed and are performing within the scope of their practice as defined by state law
Christian Science practitioners listed with the First Church of Christ Scientist in Boston, Massachusetts; and
any health care provider from whom the University's health care plans will accept certification of the existence of a serious health condition.

What is the definition of a "qualified exigency"?

The 2009 amendments to the FMLA introduce a new type of leave which has nothing to do with a person's serious health condition or the birth or adoption of a child, but instead is for "qualifying exigencies" arising out of the covered military service of a covered family member. This leave is limited to 12 weeks in the normal FMLA 12 month period. Certification is required for leave taken due to a qualifying exigency. The National Defense Authorization Act for Fiscal Year 2010 (H.R. 2647) expands the definitions of Covered Service member, Covered Active Duty, and the definition of a serious injury or illness.

Employees are eligible to take FMLA leave because of a qualifying exigency when the covered military member is on active duty or call to active duty status in support of a contingency operation as either:

A member of a regular component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country or;
A member of a reserve component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty

"Qualified exigencies" are now defined to include the following:

Short-notice deployment. Issues that arise from the fact that a covered military member is called to active duty with notice of seven days or less prior to deployment. This leave can be taken during the seven-day period only.
Military events and related activities. Leave to attend official military events related to active duty, or to attend family support or assistance programs and informational briefings related to the call to active duty.
Childcare and school activities. Leave to arrange for alternative child care for a child (as defined by the FMLA) of a covered service member, to provide childcare on an emergency basis (but not a routine, regular, or every day basis), to enroll a child of a covered service member in school, or to attend school meetings for the child of a covered service member where the leave is necessitated by the active duty or call to active duty of the covered service member.
Financial and legal arrangements. Leave to make financial or legal arrangements to address the covered service member's absence for military duty, or to act as the covered service member's representative for purposes of obtaining military service benefits. Leave can only be taken to obtain military service benefits while the service member is away on active duty or within 90 days of termination of that active duty.
Counseling. Leave to attend counseling by someone other than a health care provider for the employee, the covered service member, or a child of the covered service member, provided that the need for counseling arises from the military service.
Rest and recuperation. Leave to spend time with a covered service member who is on a short-term, temporary, rest and recuperation leave during the period of deployment. This leave is limited to five days for each military rest and recuperation visit.
Post-deployment activities. Leave to attend post-deployment functions, such as arrival ceremonies or reintegration briefings, that occur within 90 days following the termination of active duty status, or to address issues that arise from the death of the covered service member, such as making funeral arrangements.
"Additional activities". These are not defined by either the FMLA or the regulations. The regulations state that such leave is allowed "to address other events which arise out of the covered military member's active duty or call to active duty status provided that the employer and the employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave". In other words, granting leave for "qualified exigencies" for purposes other than those stated in the above is at the discretion of the employer, though employers should keep in mind that courts and the DOL will give eligible employees the benefit of the doubt in coverage and enforcement disputes.

For "qualifying exigencies" leave, employers may not seek 2^nd or 3^rd opinions, demand recertification, or seek authentication or clarification as they can with traditional medical certification. For military care-giver leave, employers may seek authentication and/or clarification of the certification form, but may not seek 2^nd or 3^rd opinions or recertifications.

Where the employee's "qualifying exigency" involves meeting with a 3^rd party, such as for counseling, the employer may contact the 3^rd party without the employee's permission to verify the appointment and the nature of the meeting. The employer may also contact the Department of Defense, again without the employee's permission, to verify the employee's family member's active duty or call to active duty status.

What is the definition of military caregiver leave?

Leave may be taken for a covered service member defined as either:

A member of a regular component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country with a serious injury or illness;
A member of a reserve component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty with a serious injury or illness;

Serious injury or illness is defined as either:

An injury or illness that is incurred in the line of duty on active duty that may render the service member medically unfit to perform the duties of his or her office, grade, rank or rating. Leave can be taken for a covered service member (a) who is on the temporary disability retired list, (b) who is undergoing medical treatment, recuperation, or therapy for the serious illness or injury; or (c) who is assigned to a military medical treatment facility as an outpatient or is otherwise receiving outpatient care at a unit established for members of the armed forces.
A veteran who is undergoing medical treatment, recuperation, or therapy, for a serious injury or illness and who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of five years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy

An employee caring for a covered service member with a covered serious illness or injury is eligible for up to 26 weeks of FMLA leave within a 12 month period. The 12 month period is not defined by the employer under a calendar fixed or rolling year, but rather is defined as a rolling year beginning on the first day of leave. If the individual needs to care for more than one service member or the original service member has a subsequent injury, the individual may be entitled to take more than one period of 26 weeks of leave, but the individual cannot take more than 26 weeks for the same illness or injury for a single service member. Regular FMLA (i.e., for the individual's own serious health condition or for the care of a non-service member) is still limited to 12 weeks, and "qualified exigency" leave does not qualify for the 26 weeks service member caregiver leave.

What is the definition of "next of kin"?

Family members of the covered service members include, along with the parent, spouse, or child already covered by the FMLA, "next of kin" which is defined as the service member's nearest blood relative. Generally, the service member will designate next of kin. However, where the service member has not done so, multiple individuals may meet the definition.

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