Q&A: Does FMLA cover leave for a child’s orthodontist visits?

An employee wants to take leave under the Family and Medical Leave Act (FMLA) for their child’s monthly orthodontist appointments. Does this fall under FMLA?

Eligible employees can take FMLA leave to care for a child, spouse, or parent who has a serious health condition. Caring for a family member under the FMLA includes assistance with basic medical, hygiene, nutritional, safety, transportation needs, physical care, or psychological comfort.

The FMLA defines “serious health condition” broadly to include any “illness, injury, impairment, or physical or mental condition that involves” either inpatient care or “continuing treatment” by a “health care provider.” Regulations issued by the Department of Labor (DOL) to implement the FMLA further expand the definition of “serious health condition” to include an illness, injury, impairment, or physical or mental condition which involves: (1) inpatient care; or (2) “continuing treatment” by a health care provider. Continuing treatment also includes examinations to determine if a serious health condition exists and evaluations of the condition.

While leave to take family members to medical appointments in connection with a serious health condition as defined under the FMLA may be FMLA-covered absences, routine physical (and dental examinations) that are not conducted in connection with a serious health condition are not.

Federal regulations indicate as follows

“CFR § 825.113 Serious health condition.

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in § 825.114 or continuing treatment by a health care provider as defined in § 825.115.

(b) The term incapacity means inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.

(c) The term 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 examinations, or dental examinations. A regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (e.g., oxygen). A regimen of continuing treatment that includes the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or 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.

(d) Conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not serious health conditions unless inpatient hospital care is required or unless complications develop. Ordinarily, unless complications arise, the common cold, the flu, earaches, 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. Restorative dental or plastic surgery after an injury or removal of cancerous growths are serious health conditions provided all the other conditions of this regulation are met. Mental illness or allergies may be serious health conditions, but only if all the conditions of this section are met.”

You will want to follow your normal policies and procedures and request medical certification from this employee of the need to take leave to care for a family member. Your employee has 15 calendar days to return such certification (unless extenuating circumstances prevent them from doing so or you normally permit more than 15 days—perhaps by policy or the collective bargaining agreement). As always, employers must ensure all medical information obtained through the certification process is kept confidential and handled in compliance with privacy laws, such as HIPAA.

You should provide this employee with WH-380F (for family member’s serious health condition) for the child’s healthcare provider to complete. However, unless this orthodontic work is related to a serious health condition as defined by the FMLA, rather than being routine orthodontic treatment, this will likely not be FMLA leave.

Key takeaways for employers

• Review internal policies for consistency and compliance.
• Train managers on how to recognize potential FMLA leave requests and avoid making eligibility determinations without HR input.
• Document all steps taken during the certification process to maintain compliance and support decisions.

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