Backs across America must collectively be giving out, as my clients’ questions about medical certification from chiropractors are on the increase.
So, I’ll hit this one head on: Is a chiropractor considered a health care provider under the FMLA? And are there any special rules that apply to them? Yes and yes.
Are Chiropractors “health care providers”?
Chiropractors are considered health care providers but only to the extent that their work with the patient involves “treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist.” 29 C.F.R. § 825.125(b)(1)
That’s a mouthful.
Let’s break it down. Where medical certification is provided through a chiropractor, two factors must be present: 1) the chiropractor must actually have taken an x-ray of the back; and 2) the x-ray and treatment from the chiropractor must relate to subluxation (i.e., misalignment) of the spine.
If these factors are present, the chiropractor is considered a “health care provider,” and therefore the treatment and any time off due to incapacity (because of the misalignment of the spine) is covered by the FMLA. The time off work could be continuous or intermittent.
How have the Courts Interpreted Situations involving Chiropractors?
There are very few cases dealing with chiropractors, but a few recent cases give you a flavor of what courts have required where chiropractors are concerned:
- No x-ray = No FMLA Leave! In Olsen v. Ohio Edison Co., the employee requested FMLA leave to treat with a chiropractor, but the chiropractor didn’t take any x-rays at the time he completed medical certification. Because the chiropractor hadn’t yet taken any x-rays, the court determined that the chiropractor was not acting as a health care provider as defined by the FMLA regs, and it dismissed the FMLA claims.
- Davison v. Roadway Express: The court found that the employee could be entitled to FMLA leave where he was able to show that the chiropractor took an x-ray, treated him for subluxation and that he needed leave on a continuous basis and for flare ups due to his back condition.
Insights for Employers
In determining whether you are required to grant FMLA leave in situations involving chiropractic care, you should confirm through medical certification:
1. Whether an x-ray of the back was taken
2. Whether the chiropractor has found and is treating for subluxation of the spine
3. Whether the chiropractor has then certified a condition (relating to treatment of subluxation) requiring continuous or intermittent leave
Anything short of this is not protected by FMLA.
Jeff Nowak is a Partner at the law firm of Franczek Radelet and serves as co-chair of the firm’s Labor and Employment Practice and was named by Law Bulletin Publishing as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012. Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits. Jeff is the author of the firm’s highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2016) and was also voted the No. 2 Labor and Employment blog by LexisNexis.
The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.
