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In Scott v. Honda Manufacturing of Alabama, LLC, No. 07-14030, 2008 U.S. App. LEXIS 6054 (11th Cir. March 20, 2008), the court addressed whether the employee's mother had a chronic serious health condition entitling the employee to FMLA leave.

A chronic serious health condition has three elements: (1) it requires periodic visits for treatment by a health care provider; (2) the condition must continue over an extended period of time (including recurring episodes of a single underlying condition); and (3) the condition may cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).

The Eleventh Circuit affirmed the trial court's dismissal of the FMLA claim, finding that the facts did not establish an FMLA-covered chronic serious health condition. Specifically, the court found that the condition did not continue over an extended period of time and did not require periodic visits to a health care provider for treatment. The employee's mother underwent stress and other testing after experiencing shortness of breath in September 2005. The only other appointment was for a heart catherization in October 25, 2005, from which she completely recovered within 48 hours. There was no evidence of medical follow up regarding the heart catherization.

Comment: It is unclear from the terse opinion whether the court considered the stress testing and heart catherization procedures to be related for purpose of a chronic serious health condition. Assuming that they were related, the month-long duration of the entire episode failed to satisfy the requirement that the condition "continues over an extended period of time."

The FMLA does not currently define what it means by an "extended period of time. The DOL should seriously consider modifying the regulations to identify a minimum period of time before a condition is considered to have lasted "an extended period of time" for purposes of a chronic serious health condition. Absent a defined minimum, covered employers and employees will have to go through the time and expense of litigating the issue in every instance.

The court's determination that the mother did not satisfy the "periodic treatment" requirement is more problematic, assuming that the stress and catherization procedures are related. If that is the case, the mother visited a health care provider twice for the same condition within a month. Based on case law developments, the DOL has proposed to modify the existing definition of a chronic serious health condition to define "periodic" as two or more health care provider visits a year. Under that definition, and assuming that the two treatments are related, the mother would have satisfied the periodic treatment requirement of a chronic serious health condition.

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