The FMLA Trap That Trips Up Good Employers:
“Three days plus continuing treatment”—that’s the one that sneaks up on even seasoned HR pros. Why? Because FMLA counts calendar days, not workdays. When you think in workdays, you can miss qualifying events and expose your organization to compliance
failures.
For example:
An employee gets sick on a Friday. They see a doctor, rest over the weekend, and don’t feel well enough to return until Tuesday.
- Payroll view: They missed two workdays (Monday, Tuesday).
- FMLA view: They were incapacitated for four consecutive calendar days— Friday, Saturday, Sunday, Monday— which crosses the “more than three full calendar days” threshold. That can trigger
FMLA protections.
If you’re counting “workdays,” you’ll likely miss this—and that’s how good teams end up on the wrong side of an otherwise avoidable FMLA problem.
The rule, in plain English
Under the FMLA, one way a condition qualifies as a serious health condition is incapacity of more than three consecutive, full calendar days plus continuing treatment by a health-care provider. “Incapacity” means the person can’t work,
attend school, or perform other regular daily activities because of the condition, its treatment, or recovery.
What counts as “continuing treatment”?
The regulations spell out two common paths (either one is enough):
- Two or more in-person treatments within 30 days of the first day of incapacity (barring extenuating circumstances), and the first (or only) visit must occur within 7 days of the first day of
incapacity;
or
- One in-person treatment that results in a regimen of continuing treatment under the provider’s supervision (for example, a prescription medication).
PS: The U.S. Department of Labor’s guidance says the same thing in plain language: more than three full, consecutive calendar days plus ongoing medical treatment (either multiple appointments or one appointment with follow-up care, like a
prescription).
Why do “calendar days” matter so much?
- Weekends and holidays count.
- Scheduled days off count.
- If someone is unable to work for four straight calendar days, you’ve crossed the threshold—even if only two of those were days they were scheduled to be at work.
- That’s why Friday-to-Tuesday illnesses are classic FMLA qualifiers that often get missed.
What should HR do
differently (starting today)?
Flip your mental model to calendar days.
When an employee reports an illness or injury, log the first day of incapacity and start counting full calendar days, not shifts or workdays.
Check for continuing treatment.
Verify whether there was an in-person provider visit within 7 days and either a second visit within 30 days or a prescribed regimen
(e.g., antibiotics).
Offer FMLA rights promptly—even if the employee didn’t say “FMLA.” Employees don’t have to use the magic words; they just need to give sufficient information to put you on notice. Provide the rights and responsibilities notice and, if you use it, request medical certification (employees generally get at least 15 calendar days to return it).
Document the 'Calendar Day Count' in your case
notes.
Capture the dates of incapacity, treatment dates, and whether the regimen or follow-up criteria are met.
Train supervisors to escalate “I was out sick” beyond payroll.
A quick heads-up to HR can be the difference between clean compliance and a costly miss. Need help navigating employment laws? Contact me for consulting options.
