Orthodontic - FMLA?

HRInd · October 2005

We have an employee who has submitted a certification for Family Medical Leave for her daughters orthodontics visits that occur every 5-6 weeks. We have researched a few places, but can not seem to find supporting evidence that this would be a "serious health condition", although it does require multiple vists to the orthodontist. The certification on Section 3 where they can mark 1-6, the dentist has marked None of the above. Would that be evidence enough that this is not a covered condition under the FMLA? Would there be any dental visit that would be covered? Thanks for any input!!

LindaS · October 2005

In examining the definition of "serious health condition" the definition is an illness, injury, impairment or physical or mental condition that requires either a) inpatient care, b) an absence of more than three calendar days requiring continuing treatment, pregnancy or prenatal care and finally, c) continuing treatment by or under the supervision of a health care provider for chronic or long-term conditions that are so serious that if not treated would likely result in a capacity of more than three days.

In reviewing this definition (granted I summarized it), it would appear that orthodintic treatment would not fall under this definition. I would deny it.

marc · October 2005

I have to disagree Linda. I think it qualifies under the paragraph c) continuing treatment portion. The daughter obviously is covered under the family portion of the act. I would let it happen and count the days. What is the harm - she would be out on sick leave anyway? Just my opinion.

HRInd · October 2005

Thank you for responding. However, I will agree with Linda. After I posted this, I continued to research and found in 29 CFR 825.114 under "What is a Serious Health Condition" that "conditions for which cosmetic treatments are administered are not serious health conditions unless inpatient hospital stay is required. Ordinarily the common cold, flu, ear aches, upset stomach, minor ulcers, headaches other than migraines, 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."

Sorry for the long explanation, but wanted to include those things as we have all probably encountered at least one of them before. Hope that helps.

Thanks again for your help!

marc · October 2005

You think orthodontia is cosmetic? this is another point upon which I would disagree - but hey, it is the ERs call. If you are comfortable going against the certification of a medical provider, without the benefit of a second opinion backing up your diagnosis, the you get to do so.

I suspect lots of DDS folks could give you a long treatise on the non-cosmetic aspects of orthodontia. I know when my son had it done, way before FML was even an issue, he had problems with his bite that could only be corrected in this fashion. Other complications, such as TMJ, were involved - but perhaps your EEs daughter only needs it for cosmetic purposes and the dentist filling out the certification form is trying to pull a fast one on you?

Is this EE avoiding disciplinary action related to these appointments and you think she is trying to scam you out of some leave time - then you may have different issues.

But if this EE is not a problem child and all you are looking at is giving a few days of intermittent leave over the next several months, what is the benefit you achieve by challenging this certification? If the EE is going to be off anyway and you can also start the FML clock - where is the harm with going with a medical providers certification of this need?

Gillian3 · October 2005

I think that Mark is correct. The key words are "cosmetic" and "routine". If that is what you have, then fine, however orthodontia can change into a medical care issue if there are problems. That could be FMLA but I bet that you wouldn't want to be the court challenge for this. The other comment about why not grant the leave illustrates the practical impact of what we do in HR. There is more of a positive impact to HR when we interpret issues, which can go either way, in favor of employees when it doesn't make any difference. In this instance, the employee is going to be off anyway, so why not.

CJinNM · October 2005

A word of caution, though...if you treat this situation as a serious health condition under FMLA you are putting yourself in a situation where you may need to approve any other orthodontic situation as FMLA as all any EE would need to do is submit documentation from the dentist showing a need for continuing treatments. Just be sure to keep the "consistency" factor in mind.

marc · October 2005

Of course, if the dentist would not so certify, then none of it is even considered.

Orthodontic - FMLA?

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