FMLA FAQ: Can General Aches And Pains Support The Need For FMLA Leave?

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Explore:  DOL FMLA Sick Leave

kid on back.jpgI just returned from Disney World, a trip that had me chasing my kids (ages 8, 6 and 4) for days on end. So, I'm tired.  And I ache.  My feet ache. My back aches from my four year old riding on my shoulders. My head aches from thinking about my back.  Even my aches have aches.  

Don't get me wrong -- we had a wonderful time.  I've fully bought into the magic of Disney, and I'm drinking the Tinkerbell kool aid.

But back to my feet.  And back. What if my pains were sufficient enough (in my own mind) to keep me off work for four consecutive days? Would this be enough to trigger the FMLA?

Before you tell me to jump in a lake, let's take a closer look at the FMLA regulations.  The DOL has told us: 

Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave. 29 C.F.R. 825.113(d).

Additionally, simply staying at home, drinking fluids, and staying the day in bed are activities which can be initiated without a visit to a health care provider and do not constitute “continuing treatment” necessary to establish a serious health condition.  29 C.F.R. 825.113(c)

Sounds pretty good so far.  This regulatory language seems to support Congress's own deliberations when it passed the FMLA, as the legislative history makes clear that FMLA should not cover short-term conditions for which treatment and recovery are very brief.

But before you slap me with discipline for my four-day hiatus, be mindful of a thorough 1996 opinion letter from the DOL, which explains that a several-day absence could be covered by the FMLA:

If . . . any of these conditions met the regulatory criteria for a serious health condition, e.g., an incapacity of more than three consecutive calendar days that also involves qualifying treatment, then the absence would be protected by the FMLA. For example, if an individual with the flu is incapacitated for more than three consecutive calendar days and receives continuing treatment, e.g., a visit to a health care provider followed by a regimen of care such as prescription drugs like antibiotics, the individual has a qualifying “serious health condition” for purposes of FMLA.

As for my minor aches and pains, I am likely out of luck.  And for good reason, as the FMLA was not meant to cover these minor conditions.  The DOL opinion letter above is instructive, however, so it's important for us as employers to inquire, where necessary, to ensure we have sufficient facts to determine whether a multi-day absence has triggered the FMLA.  If you forgot how to go about that, consider my guidance from a prior post here, which includes various questions you can ask your employee to determine whether an absence may be covered by the FMLA.

In the meantime, I'll be singing Supercalifragilisticexpialidocious in the background...