It’s likely the employee may enjoy protected leave under the Family and Medical Leave Act (FMLA). This federal law applies to all public agencies and any private employer with 50 or more employees. The employee will be eligible for protected leave under this Act if the employee has worked for the company for at least 12 months in the last seven years, has worked at least 1,250 hours for the company during the last 12 calendar months, is employed at a worksite that has 50 or more employees within a 75-mile radius and has a “serious health condition” as defined by the FMLA.

Under the FMLA, a “serious health condition” is defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.

The “continuing treatment” test for a serious health condition under the regulations may be met through:

• A period of incapacity of more than three consecutive, full calendar days plus treatment by a health care provider twice;
• A period of incapacity of more than three consecutive, full calendar days plus treatment by a health care provider once with a continuing regimen of treatment;
• Any period of incapacity related to pregnancy or for prenatal care;
• Any period of incapacity or treatment for a chronic serious health condition;
• A period of incapacity for permanent or long-term conditions for which treatment may not be effective;
• Any period of incapacity to receive multiple treatments (including recovery from those treatments) for restorative surgery; or
• A condition which would likely result in an incapacity of more than three consecutive, full calendar days absent medical treatment.

If an employee claims a serious health condition under the requirement of a “period of incapacity of more than three consecutive, full calendar days and any subsequent treatment or period of incapacity relating to the same condition,” the employee’s first treatment visit (or only visit, if coupled with a regimen of continuing treatment) must take place within seven days of the first day of incapacity.

Additionally, if an employee asserts that the condition involves “treatment two or more times,” the two visits to a health care provider must occur within 30 days of the first day of incapacity. Finally, the regulations define “periodic visits” for treatment of a chronic serious health condition as at least twice a year.