Q. An employee recently missed five days of work due to the flu. She did not visit the doctor, but did call in to the doctor's office while she was out. Based upon the call, the doctor wrote her a prescription for some medication. Does this count as FMLA leave?

A. Unless there is more to the story, probably not. Under the FMLA, a "serious health condition" means an injury, illness, impairment, or physical or mental condition that involves inpatient care or "continuing treatment" by a health care provider.

One of the ways in which a condition can meet the "continuing treatment" requirement is if the condition involves a period of incapacity of more than three full calendar days, and treatment by a health care provider two or more times within 30 days, or one time followed by a "regime of continuing treatment," which can include a course of prescription medicine.

In the scenario above, the employee appears to have been incapacitated for more than three days. She also appears to have received a course of prescription medication. The question, therefore, is whether her call to the doctor constituted a "treatment." On this, the regulations are clear: "treatment by a health care provider means an in-person visit to a health care provider."

Note that if the employee's absences were related to a chronic condition rather than a temporary illness like the flu, the employee might still be eligible for leave even though she did not visit the doctor in connection with this specific absence.