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FMLA - Definitions

"Child" means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing “in loco parentis” by providing day-to-day care and/or financial support. For FMLA leave for adoption, foster care or a family member with a serious health condition, the child must be either under age 18, or age 18 or older and incapable of self-care because of a mental or physical disability as defined by the ADA. For FMLA leave due to birth and care of a newborn child, the child must be under 12 months of age.

"Incapacity" means an inability to work, attend school or perform other regular daily activities due to a serious health condition, treatment therefore or recovery therefrom.

"Intermittent Leave" means leave taken in separate periods of time due to a single qualifying reason.

"Next of Kin" means the nearest blood relative other than the covered servicemember’s spouse, parent, or son or daughter.

"Parent" means a biological, adoptive, step or foster parent, or other person who stood “in loco parentis” to the eligible employee when the employee was a child by providing day-to-day care and financial support. The term does not include parent-in-law.

"Reduced Leave Schedule" means a leave schedule that reduces the employee’s usual number of working hours per workweek, or hours per workday for a period of time.

"Regimen of Continuing Treatment" requires prescribed treatment from a health care provider and includes, for example, a course of prescription medication or therapy requiring special equipment to resolve or alleviate the medical condition. A regimen that includes taking over-the-counter medications, bed-rest, drinking fluids, exercise and other similar activities that can be initiated without a visit to a health care provider is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave.

"Serious Health Condition" means an illness, injury, impairment, or physical or mental condition that involves one of the following:

  1. Inpatient Care: An overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with such inpatient care.
  2. Continuing Treatment by a Health Care Provider: A serious health condition involving continuing treatment by a health care provider including any one or more of the following:
    1. Incapacity and Treatment: A period of incapacity of more than 3 consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
      1. 2 or more in-person visits to a health care provider for treatment, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider; or
      2. At least 1 in-person visit to a health care provider for treatment which results in a regimen of continuing treatment under the supervision of the health care provider.

The first treatment visit must take place within 7 days of the first day of incapacity.

  1. Pregnancy: Any period of incapacity due to pregnancy, or for prenatal care, even if the employee or covered family member does not receive treatment from a health care provider during the absence and even if the absence does not last for more than 3 consecutive, full calendar days.
  2. Chronic Serious Health Condition: Any period of incapacity or treatment due to a chronic serious health condition which:
    1. Requires periodic visits (defined as at least twice a year) for treatment by a health care provider; and
    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.).

Absences attributable to incapacity due to a chronic serious health condition 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 for more than 3 consecutive, full calendar days.

  1. 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.
  2. Conditions Requiring Multiple Treatments: Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than 3 consecutive, full calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), kidney disease (dialysis).

Unless complications arise, cosmetic treatments, the common cold or flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease are not serious health conditions for purposes of FMLA leave.

"Serious Injury or Illness" means (1) In case of a current member of the Armed Forces, including a member of the National Guard or Reserves, an injury or illness that was incurred in the line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty in the Armed Forces); and (2) In the case of a covered veteran, an injury or illness that was incurred by the member in the line of duty on active duty in the Armed Forces (or existed before he beginning of the member’s active duty and was aggravated by service in the line of duty on active duty in the Armed Forces) and manifested itself before or after the member became a veteran.

"Spouse" means a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.

"Treatment" includes, but is not limited to, examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye or dental examinations.