EE is having outpatient cataract surgery on both eyes but on separate days. EE will miss 2 days each time and also has pre-op appt and post op follow up for each. Since this is outpatient (not inpatient care with overnight stay in hospital) and there will be no 3 consecutive days of incapacity does the it qualify for FMLA under intermittent leave since there will be 2 surgeries for the cataracts?

What about the spouse that works here also, does he qualify for intermittent leave since he will need to drive her to and from surgery and appts (assuming wife's outpatient surgery does qualify as serious health condition). Again, no 3 days so would it be qualified as intermittent? I know that driving to appts is considered as part of providing care, but is the 3 hours here and there enough time to qualify?


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  • I believe this would fall under the category of "multiple treatments" of a condition that "would likely result in a period of incapacity of more than three days in the absence of medical intervention or treatment." See 29 C.F.R. 825.115(e). I would also consider the possibility of it being covered as a chronic condition under 29 C.F.R. 825.115(c). If it were me, I would approve the leave.

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