The Mailbag.

• Author: Davenport, Anniken

What are the medical criteria qualifying as a 'serious health condition' under the FMLA?

Q Why wouldn't gallbladder removal surgery qualify for FMLA? Are there other procedures that would be excluded?--Jodie, Kansas

1. It sounds like it should have qualified for FMLA leave. Section 101(11) of the FMLA defines a serious health condition as "an illness, injury, impairment, or physical or mental condition that involves:

   * inpatient care in a hospital, hospice, or residential medical care facility; or

   * continuing treatment by a health care provider."

   Under the FMLA, a serious health condition includes:

   * Incapacity due to pregnancy and prenatal care

   * A chronic condition such as asthma, diabetes, etc.

   * A permanent or long-term condition for which treatment may not be effective (such as Alzheimer's, stroke, terminal diseases)

   * A condition requiring multiple treatments either for restorative surgery after an accident or other injury

   * 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 dialysis, chemotherapy, etc.).

   FMLA regulations also say a period of incapacity of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, involves:

   * Treatment two or more times by a health-care provider, by a nurse or physician's assistant under orders of, or on referral by, a health-care provider

   * Treatment by a health-care provider on at least one occasion that results in a regimen of continuing treatment under the supervision of the health-care provider.

   Assuming the gallbladder surgery was carried out while the individual was admitted to the hospital, the time off would be FMLA covered.

   Otherwise, outpatient surgery that includes a prescription for antibiotics, painkillers or other medications likely would also be covered if the patient will be incapacitated for three days, including the day of the outpatient surgery. That's likely especially if the surgery followed a gallbladder attack that left the individual incapacitated before the surgery.

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