FMLA Protected Absence Analysis©

December 20, 2007

The following analysis is designed to help determine whether an employee’s absence from work is legally protected by the Family & Medical Leave Act.      

Does FMLA apply? Check Yes or No.
  1. Do 50 or more employees work for the same employer within 75 miles of the employee’s work site? ❑y ❑n
Reference: 29 USC 2611(2)(B); 29 CFR §§ 825.104 and 825.110  

2. Has the employee been employed for at least 12 months? ❑y ❑n
Reference: 29 USC § 2611(2)(a); 29 CFR § 825.110

3. Has the employee worked at least 1,250 hours in the 12 months immediately before the absence? ❑y ❑n
Reference 29 USC § 2611(2)(a); 29 CFR § 825.110  

Child Birth and Placement Protection  
  4. Is the employee’s absence due to the birth of a child, or the placement of an adopted or foster child with the employee, within 12 months of the absence? ❑y ❑n
Reference 29 USC § 2612; 29 CFR § 825.201  
FMLA Analysis: If the answer is “yes,” then the absence may be protected. 

Serious Health Condition Protections  
5. Is the absence due to a physical or mental condition (“serious health condition1”) that causes an inability to work, attend school or perform other regular daily activity (“incapacity”) due to the condition’s effects, treatment or necessary recovery period? ❑y ❑n
Reference 29 USC § 2612(a)(1)(C) and (D); 29 CFR § 825.114(a)

6. Did the serious health condition require an overnight stay in a hospital or other residential medical care facility? ❑y ❑n 
Reference 29 CFR § 825.114(a)(1)  

7. Did the inability to work, attend school, or perform other regularly daily activity (incapacity) continue for more than 3 calendar days?❑y ❑n
Reference 29 CFR § 825.114 and § 825.118 

8. Did the “serious health condition” require at least 2 treatments by a physician or other health care provider? ❑y ❑n

FMLA Protected Absence Analysis©

Check Yes or No:
9. Did the serious health condition require at least one treatment by a physician or health care provider who prescribed prescription medicine or other regimen of continuing treatment that cannot be initiated without a visit to a health care provider? ❑y ❑n
Reference 29 CFR § 825.114(a)(2)(i)(B) and § 825.114(b) 

10. Was the absence due to an inability to work, or perform other regular activity as a result of pregnancy or the need for prenatal care? ❑y ❑n
Reference 29 CFR § 825.114(a)(2)(ii)

11. Was the absence due to an inability to work, attend school, or perform other regular daily activity due to a chronic health condition? ❑y ❑n
Reference 29 CFR § 825.114(a)(2)(iii) and (iv) and § 825.334(b)(4)(v) 

Protections for Employee Health Conditions   
12. Is the employee absent because he/she has the “serious health condition” AND is unable to perform any one of the “essential functions5” of his/her job? ❑y ❑n
Reference 29 USC §2612(a)(1)(D); 29 CFR § 825.112(a)(4) and § 825.115  

FMLA Analysis: If the answer is “yes,” then the absence may be protected. 

Protections for Family Health Conditions   
  13. Is the employee absent because he/she is needed to care6 for a spouse, child, or parent with the “serious health condition?”  ❑y ❑n
Reference 29 USC § 2612(a)(1)(C); 29 CFR § 825.112(a)(1)(3), § 825.113, § 825.116
FMLA Analysis: If the answer is “yes,” then the absence may be protected.    

The “serious health condition” may be an illness, injury, impairment or other physical or mental condition, but the common cold, the flu, earaches, upset stomach, minor ulcers, headaches other than migraines, routine dental or orthodontia problems, and periodontal disease without complications, are not “serious health conditions.”

“Health care providers” include physicians, podiatrists, dentists, clinical psychologists, optometrists, nurse practitioners, clinical social workers (within scope of license to practice) or chiropractors (limited to treating subluxation shown on x-rays). Such treatment also includes care given by a nurse, physician’s assistant, physical therapist, etc. under orders or referral from a “health care provider.” 29 CFR § 825.114 and § 825.118.

Examples of continuing “regimen of continuing treatment” include a course of prescription medicine (e.g. an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (e.g. oxygen). Instructions to take over the counter medications such as aspirin, antihistamines, or salves, or bed rest, drinking fluids, exercise, and similar activities that can be initiated without a visit to a health care provider are not, by themselves, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave.” 29 CFR § 825.114(b).

A “chronic health condition” is one continuing over an extended period of time, requiring extended periodic treatment by a health care provider, or causing episodic incapacity – asthma, diabetes, epilepsy, Alzheimer’s, stroke, chemotherapy, dialysis, terminal disease, etc. 29 CFR § 825.114(a)(2)(iii).

A job’s “essential functions” are determined by the ADA definition: (1) does the job exist to perform this function; (2) are there only a limited number of employees who can do this function; or (3) the job function is so specialized that the employee doing this job must have a particular expertise or ability to perform the function. 29 CFR § 1630.2(n)(2).

The “care” needed may be physical because the family member is unable to care for his or her basic medical, hygienic, or nutritional needs or safety, is unable to take him/herself to the doctor, etc. It also includes psychological comfort, or the need to “fill in” for others who are caring for the family member. 29 CFR § 825.112(a)(1)(3), § 825.113, § 825.116.

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