Ask the Expert: FMLA Eligibility Requires Treatment Within 7 Days of Incapacity

Question: One of our employees has been in and out with cold and flu symptoms, but he was recently diagnosed with strep throat. The leave originally wasn’t classified as Family and Medical Leave Act (FMLA) leave, but because the official diagnosis occurred almost a month after the first missed workday, does the time he took off since day one fall under the FMLA?

Answer: Assuming the employee is otherwise eligible for FMLA based on hours worked and length of service, his eligibility for FMLA isn’t dependent on his actual diagnosis. Leave is given for serious health conditions requiring inpatient care (overnight stay in a medical care facility) or incapacity and treatment. 

A period of incapacity is defined as “more than 3 consecutive full calendar days” and any subsequent treatment or period of incapacity relating to the same condition that also involves:

• Treatment two or more times within 30 days of the first day of incapacity (unless extenuating circumstances exist) by a healthcare provider; or
• Treatment by a healthcare provider on at least one occasion that results in a regimen of continuing treatment under the provider’s supervision. The first (or only) treatment by a healthcare provider must be an in-person visit and take place within seven days of the first day of incapacity. A “regimen of continuing treatment” includes, for example, a course of prescription medication to resolve or alleviate the health condition.

Therefore, if the employee wasn’t hospitalized or didn’t miss three consecutive days of work and wasn’t seen by a healthcare provider within seven days of his incapacity, the employee isn’t eligible for FMLA leave back to day one of his illness.

Nancy Vollertsen is an attorney at Goosmann Law Firm in Sioux Falls, South Dakota. She can be reached at vollertsenn@goosmannlaw.com. 

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