Hastings Law Journal


This Note examines the definition of "serious health condition" under the Family Medical Leave Act ("FMLA"). The FMLA allows an employee to take time off from work if she suffers from a "serious health condition" or needs to care for a family member with a "serious health condition." The Department of Labor regulations provide that a "serious health condition" requires inpatient care or continuous treatment. Many courts have interpreted the Department of Labor regulations as setting up a bright-line test for determining whether an illness constitutes a "serious health condition" under the FMLA. This Note argues that the Department of Labor test, as interpreted by the courts, is both over-inclusive and under-inclusive.

This Note proposes that the Department of Labor should change its regulations and adopt a balancing test that accounts for Congress's concerns and goals as articulated in the Senate Report. A balancing test would give courts more flexibility and would lead to more accurate and equitable determinations of whether an illness rises to the level of a "serious health condition" under the FMLA.

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