What counts as a serious health condition under FMLA

What counts as a serious health condition?

"Serious health condition" is a term defined in the FMLA regulations. It is not a rating of how sick you are, and nobody scores you against anyone else.

29 CFR 825.113(a) defines it as an illness, injury, impairment, or physical or mental condition that involves inpatient care, or continuing treatment by a health care provider. Two routes in. Which one fits depends on where you were treated and what the treatment involved.

The regulations also define incapacity: being unable to work, attend school, or perform other regular daily activities because of the condition, its treatment, or recovery from it. That word does real work in the routes below.

One of the continuing-treatment routes turns on more than three consecutive, full calendar days of incapacity combined with treatment. That route and the chronic-condition route are answered in full in our guide to intermittent FMLA, so this page sends you there instead of repeating them.

Mental conditions sit in that definition alongside physical ones. If yours is depression or anxiety, our guide on FMLA for depression and anxiety picks it up from here.

Does an overnight stay count?

An overnight stay counts. Under 29 CFR 825.114, inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility.

That route carries more than the night itself. It includes any period of incapacity connected to the stay, and any subsequent treatment in connection with that inpatient care. The days you spend recovering are not a separate thing to argue about.

If you were seen and sent home the same day, the inpatient route does not reach that visit. The continuing-treatment route is the one to work through, and the rest of this page does that.

Is bed rest and an over-the-counter medicine enough?

Not by itself. That is the regulation's own wording, not an opinion about your symptoms.

29 CFR 825.113(c) says a regimen of continuing treatment that includes the taking of over-the-counter medications (aspirin, antihistamines, 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 be a regimen of continuing treatment for FMLA leave.

Read where that line is drawn. It is not drawn at how bad you feel. It is drawn at whether a health care provider is part of what you are doing about it.

The same section names what does count. A course of prescription medication, such as an antibiotic. Or therapy requiring special equipment to resolve or alleviate the condition, such as oxygen.

Treatment also includes examinations to determine whether a serious health condition exists, and evaluations of the condition. The visit where nobody is sure yet is still treatment. Routine physical examinations, eye examinations, and dental examinations are not.

Usually no appointment: the intake is a short online questionnaire and the completed forms arrive by email. A provider may follow up for more detail before deciding. If you want to see what a provider actually looks at in a review, our burnout and FMLA guide walks through one.

What if treatment will not help?

There is a route for exactly that. 29 CFR 825.115(d) covers a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective.

This route asks for something different from the others. You must be under the continuing supervision of a health care provider, but you need not be receiving active treatment. The regulation's own examples are Alzheimer's, a severe stroke, and the terminal stages of a disease.

"Nothing more can be done" is not the same as "this does not qualify." This route runs on supervision, not on treatment that works.

What about chemotherapy, dialysis, or surgery recovery?

Those sit under the multiple-treatments route, 29 CFR 825.115(e). It covers any period of absence to receive multiple treatments by a health care provider, or by a provider of health care services under the orders of or on referral by a health care provider. Any period of recovery from those treatments is included.

Two kinds of situation fit. The first is restorative surgery after an accident or other injury.

The second is 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. The regulation's examples there are cancer with chemotherapy or radiation, severe arthritis with physical therapy, and kidney disease with dialysis.

The second one reaches a condition that treatment is holding steady. The treatment is the reason the long incapacity does not happen, and the route still applies.

When does a single day count?

Sometimes, and it is worth knowing why. 29 CFR 825.115(f) is not a separate way in. It removes two requirements from two routes that already exist: pregnancy and prenatal care, and chronic conditions.

Pregnancy is its own route. 825.115(b) covers any period of incapacity due to pregnancy, or for prenatal care.

For those two routes, (f) says an absence qualifies even though the employee or 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. The regulation's examples are an employee with asthma who cannot report for work because of the onset of an attack, or because a provider has advised staying home when the pollen count goes over a certain level, and an employee who is pregnant and unable to report because of severe morning sickness.

So one day can count. It counts because the route underneath it already applies, not on its own. The chronic-condition route is answered in our guide to intermittent FMLA.

Is there a list of qualifying conditions?

Not a list of what qualifies, no. The regulations describe routes, and a diagnosis does not book you a place on one.

There is a list of what the regulation says ordinarily does not. 29 CFR 825.113(d) names the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, and routine dental or orthodontia problems as conditions that do not ordinarily meet the definition. The words doing the work there are "ordinarily" and "unless complications arise." The same paragraph puts cosmetic treatment outside unless inpatient care is needed or complications develop, puts restorative dental or plastic surgery after an injury and the removal of cancerous growths inside, and says mental illness and allergies may be serious health conditions if all the conditions of the section are met.

So a question shaped like "is COVID a serious health condition" does have an answer, and the answer is that it depends on what happened next. The conditions named on this page, asthma and diabetes and epilepsy and Alzheimer's and a severe stroke and cancer and severe arthritis and kidney disease, appear as illustrations of a route rather than as a roster. A flu that put you in hospital overnight is on the inpatient route.

Eligibility is a separate question from qualifying. 29 CFR 825.110 sets three tests: 12 months employed, 1,250 hours worked in the preceding 12 months, and 50 employees within 75 miles. Clearing all three does not by itself make an absence FMLA leave. The condition still has to qualify, and the leave still has to be designated.

A diagnosis is not required on an FMLA certification. 29 CFR 825.306 asks, among other things, for appropriate medical facts, when it started, how long it is likely to last, and why you cannot perform your job functions. The certification form itself is covered on our medical leave forms page.

The ADA runs a different test with a different definition. If the question you actually have is whether a condition counts as a disability, that is a separate page.

You don't need to know which route your situation takes before you start. Answer the intake questions, and a state-licensed provider completes and signs the paperwork your leave case needs.