Determining Employee FMLA Use for Chiropractic Care
Answer: Yes, to both. Chiropractors are considered health care providers to a certain extent. Per 29 C.F.R. § 825.125 (b)(1), a chiropractor’s work with a patient involves “treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist.”
In order for FMLA to be considered through a chiropractor, two factors have to exist:
- The chiropractor must actually have taken an x-ray of the back; and
- The x-ray and treatment from the chiropractor must relate to subluxation (i.e., misalignment) of the spine.
These two factors must be present in order for a chiropractor to be considered a “health care provider.” This means that treatment and any time off, whether it be continuous or intermittent, due to incapacity from the misalignment of the spine is covered by the FMLA.
There aren’t too many cases involving chiropractors and FMLA, but a few have come up on how courts have dealt with such situations:
- No X-Ray = No FMLA Leave – In Olsen v. Ohio Edison Co., the employee requested FMLA for treatment with a chiropractor, but there were no x-rays taken at the time he completed medical certification. Since the chiropractor hadn’t taken x-rays yet, the court determined that he was not acting as a health care provider per the regulations stated above. So the FMLA claims ended up being dismissed.
- Davison v. Roadway Express – In this case, the court determined that the employee could be entitled to FMLA leave as he was able to show that the chiropractor took x-rays prior to treatment of his subluxation. The employee needed continuous leave to treat flare ups due to his back condition.
Confirm the following through medical certification in regards to allowing FMLA leave in situations involving chiropractic care:
- Whether an x-ray of the back was taken.
- Whether the chiropractor has found and is treating for subluxation of the spine.
- Whether the chiropractor has then certified a condition (relating to treatment of subluxation) requiring continuous or intermittent leave.
Anything short of the above is not protected by FMLA.
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