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LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 37855
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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FMLA Family Medical Leave Act. Is is crucial that the employee

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FMLA Family Medical Leave Act. Is is crucial that the employee be absent (unable to perform his/her work) for three days & then get a medical certification from a health care provider. Then, we call it FMLA? What if it's ongoing counseling appointments for one hour each week? FMLA? Or just sick time?

Good morning Jan,

I'm Doug, and I'm sorry to hear of the confusion. My goal is to provide you with excellent service today.

FMLA only applies in a situation where there is a serious medical/mental illness. Counseling appointments after a prolonged absence from work are typically follow up to a serious condition and qualify for the ongoing deduction of intermittent FMLA leave.

Otherwise, if the appointments are simply routine therapy appointments and not for a serious medical condition, and not preceded by a hospitalization or other serious medical condition that resulted in the need for the employee to be absent from work, then FMLA would not apply.

FMLA dates back to the first day the employee is out---despite the fact that you may wait 3 days to get the medical certification from the physician.

Please keep in mind that, even though you have already paid your deposit money over to JustAnswer, until you rate me highly for my service, I will not be paid for having assisted you with your questions.

If you have additional questions, you may of course reply back to me and I will be happy to continue to assist you further until your questions have been answered to your satisfaction.

I wish you the best in your future.


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Customer: replied 3 years ago.

Hello Doug. Thank you for your prompt reply. I must ask a follow up question. I can not tell if the appointments are 'routine therapy' or are the result of an on-going 'serious mental condition'. I have given the employee the Heatlh Certification Form that asks for onset, possible length of time, work restrictions, etc. - no diagnosis of course. The employee has not been out for three consecutive days. I am still in a gray area. Are the three days 'incapacitated/unable to work' a critical part of the qualification? Thank you for your opinion!

Good afternoon Jan,

Again, you have the right to ask for the verification of illness from the employee getting time off, and if the treatment is related to a serious medical condition, then FMLA applies. You may even ask them if they would like to apply for FMLA before you know whether they qualify---and that will allow you to investigate.

You will simply have to wait for the paperwork to be returned. In the meantime, as there has been no claim for time off pursuant to a serious medical condition that would take the employee out of the office for many days---then you cannot simply presume that the need for therapy falls under the FMLA until you know more.

But if it does fall under FMLA, you can allow the use of paid sick leave and deduct for the FMLA days at the same time, and retroactively once you determine the time off is related to a serious medical condition.

You may reply back to me using the Reply link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.

Please remember to rate my service to you when our communication is completed.

I wish you the best in 2013,


LawTalk and other California Employment Law Specialists are ready to help you
Customer: replied 3 years ago.

Thank you Doug!

Thank you for your positive rating of my service, Jan. It has been my pleasure to assist you and I hope than you will ask for me on JustAnswer should a future need ever arise. I am generally available at least 6 days a week, and often 7, and it would be my privilege to assist you again in the future.

I welcome you to request my assistance in any future legal questions you may have, by simply placing my name in the first sentence of your new question.

Thanks again.


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