how do you define "serious" for fmla?

Question

OK, here's my situation. My daughter was sick and I ended up calling out of work for three days to take care of her. Every day I thought she was getting better but then the following morning her fever would be higher. Finally on the third day I brought her to the doctor because it wasn't going away. Turns out she had a sinus infection which was why she had the fever and also explanined why she woke up miserable but was better later in the day.

So I go back to work and apparantly, even though I called in every day, I got a verbal warning because staying home with a sick child is not an excused abscence. I had a doctor's note for my daughter to return to school but work wouldn't accept it saying it didn't matter, the fact that I was out for three days was what mattered. They also told me that I couldn't take FMLA because it wasn't a serious enough (ie chronic) condition. I say if it was serious enough that she couldn't go to school, it's serious. Who's right?

Also, I have since been denied for college tuition reimbursement because I received a verbal warning in the past two months...effectively leaving me on the hook for $3200.

Answer 1

To piggyback on Eric's answer, above, you would have been better off taking four days off (so that you met the "period of incapacity of more than three days" test). But if you had been gone for more than 3 days, AND if your daughter was given a prescription (the "continuing regimen of care" part), your leave would have qualified as a FMLA-covered absence. Leaves of absence for three days or less have to be related to pregnancy or to a chronic health condition in order to qualify.

It might help you to run your situation by someone at the US Department of Labor's Wage and Hour Division. That is the agency that enforces the FMLA, and you can call them toll-free at 1-866-4US-WAGE, or go online at www.dol.gov. You can also look at Title 29 of the US Code of Federal Regulations, Part 825.

Hope this helps.

Answer 2

This answer applies only to California, as it relies on the California Family Medical Leave Act (FMLA). It does not apply to other states.

Based solely on your description, it sounds that your employer is probably correct. A "serious health condition" is very specifically defined in the FMLA, but before getting to that, does the FMLA even apply?

FMLA only applies if you have been employed at your employer for at least 12 months, have worked at least 1,250 hours during the 12 months before leave, and your employer has at least 50 employees within 75 miles of your worksite.

Assuming that it does, under the FMLA a "serious health condition" is an illness, injury, impairment, physical condition, or mental condition that causes a period of incapacity (meaning and ability to work, attend school or perform other regular daily activities" and requires at least one of the following:

1) an overnight stay in a hospital, hospice, where residential medical-care facility (any incapacity or subsequent treatment in connection with the impairment care is also covered); or

2) continuing treatment by a health care provider


"continuing treatment" is further defined as requiring one of the following:

1) a condition causing incapacity for more than three days that requires: two or more visits to a health care provider, or one visit with the regimen of continuing treatment and supervision;

2) a chronic condition continuing over an extended period of time and requiring periodic doctor visits, and which may cause episodic rather than continuous incapacity;

3) permanent or long-term absences due to a condition for which treatment may not be effective (such as terminal cancer) where the patient is under the supervision of, but not necessarily being actively treated by, a healthcare provider;

4) absences to receive multiple treatments for restorative surgery, or a condition which would likely cause. And capacity of more than three days if not treated; or

5) pregnancy in prenatal care

The cold or flu or generally not considered a serious health condition.