condition should be stressed by presenting some specific examples, such as cancer treatment and kidney dialysis. One commenter opposed relying on the provisions in 5 U.S.C. 8117 relating to workers' compensation programs to support the requirement of "more than 3 calendar days" of incapacity beause the rationale and application of these two programs are different.
Conversely, three organizations remarked that although duration may be a factor in determining whether a condition is a serious health condition, there cannot be a threshold duration in order to qualify for leave. The organizations expressed the view that seriousness and duration do not necessarily correlate, particularly for individuals with disabilities for whom a health condition may be considered serious long before a similar health condition would be considered serious for the average person.
The organizations also stated that although OPM's definition of "serious health condition" includes chronic or long-term health conditions that require treatment to prevent longer-term illness or injury or a more severe disability, it does not cover acute or episodic conditions of shorter duration, which also require immediate treatment to prevent aggravation into a long-term injury or illness.
The legislative history states that the term "serious health condition" is not intended to cover short-term conditions for which treatment and recovery are very brief. Sick leave policies should address minor illnesses that last only a few days and surgical procedures that typically do not involve hospitalization and require only a brief recovery period. We believe the established duration period clarifies congressional intent within the regulations. In addition, DOL has concluded that the "more than 3 days" test continues to be appropriate. However, we have revised the regulations to specify that "more than 3 days" means "more than 3 consecutive calendar days." This revision is consistent with DOL's final regulations.
An agency recommended adding a paragraph to the definition stating that cosmetic or other treatments that are not medically necessary are not to be covered unless overnight inpatient hospital care is required. Others recommended that conditions that are not considered serious health conditions should be specifically included in the regulations. We agree and have added a paragraph at the end of the definition of "serious health condition" to address those treatments and conditions that are not considered a serious health condition. For example, the common cold, the flu, earaches, upset stomach, headaches (other than migraines), routine dental or orthodontia problems, etc., are not serious health conditions unless complications arise. In addition, a regimen of continuing treatment involving the taking of over-the-counter medications, bed-rest, exercises, and other similar activities that can be initiated without a visit to the health care provider is not, by itself, sufficient to meet the definition of coninuing treatment for purposes of FMLA leave.