Chapter § 1-16 29 CFR § 825.115. Continuing Treatment

• Jurisdiction: United States

1-16 29 CFR § 825.115. Continuing Treatment

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 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 § 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.

1-16:1 Commentary

1-16:1.1 Continuing Treatment

Satellite litigation has developed over the meaning of "continuing treatment," with defense lawyers arguing that there is no "continuing treatment" if the plaintiff does not follow doctor's orders.

• McPhail v. Sonoco Prods. Co., No. 4:11-cv-02417-RBH, 2013 WL 4067925 (D. S.C. Aug. 12, 2013) (summary judgment granted to defendant where plaintiff sought FMLA protection for his absences under the "regime of continuing treatment" provision; court holds that provision is inapplicable because plaintiff did not actually take prescribed medication as part of "continuing treatment" and thus no FMLA protection for absences).
• Burch v. P.J. Cheese, Inc., 935 F. Supp. 2d 1259 (N.D. Ala. 2013) (summary judgment for defendant where plaintiff did not participate in "continuing treatment").
• DOL FMLA Opinion Letter, 1996 WL 1044784 (Dec. 12, 1996), Ques. No. 1(c) (noting that an employee who does not follow doctor's instructions is probably not under a regime of continuing treatment within the meaning of the FMLA regulations).

A question sometimes arises on whether a continuing course of treatment determination can be based upon a non-FMLA condition; that is, if the initial belief of an FMLA-covered condition is later proven incorrect by subsequent medical visits, does the employee still satisfy the definition of undergoing "continuing treatment by a healthcare provider"? The courts disagree.

• Johnson v. Kmart, 596 F. Supp. 2d 1045 (E.D. Mich. 2009) (employee takes child to emergency room; doctor says child may need surgery, which later proves incorrect; court rejects other cases holding that the condition should be evaluated based on what it actually was in relevant time frame, not on employee's belief; good discussion of case law on this point; as a practical matter, employers are better off giving employee the benefit of the doubt, and not insist upon rigid adherence to the law; court reviews contrary decisions).

1-16:1.2 Periodic Visits for Treatment

The issue of chronic conditions has always been a troublesome one under the FMLA. The regulations essentially give employees with chronic conditions a "free pass" by allowing them to stay home and self-treat as opposed to being required to see a physician or health care provider. The new regulations do provide something of a restraint, requiring that the employee make "periodic visits for treatment" to a health care provider. Because periodic was undefined in the original regulations, the DOL has refined the definition to provide that a "periodic visit" means twice or more per year. 29 CFR § 115(c).

The Fifth Circuit has issued at least one case consistent with the leeway provided to employees suffering from a chronic condition.

• Lubke v. City of Arlington, 455 F.3d 489 (5th Cir. 2006) (Fifth Circuit rejects employer's argument that expert testimony is necessary to demonstrate employee's incapacity due to chronic back condition; Fifth Circuit adopts the view that, for summary judgment purposes, plaintiff's affidavit that she was too sick to work, her testimony of conversations with nurses about her condition, and her medical records were sufficient to create genuine issue of material fact regarding incapacity because of chronic condition; finally, Fifth Circuit holds that doctor visits do not have to coincide with flare-ups of chronic condition, noting that

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