Can a Chiropractor Certify FMLA Leave for the Chronic Bad Back? And Are There Limits?

Backs across America must collectively be giving out, as employee 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 Family and Medical Leave Act (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, as the FMLA puts it, "treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist."

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.

[SHRM members-only toolkit: Managing Family and Medical Leave]

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 shareholder at Littler, an employment and labor law practice representing management, and author of the FMLA Insights blog, where this article originally appeared. © 2017 Jeff Nowak. All rights reserved. Republished with permission.