A single treatment for back pain during a leave from work was not protected by the FMLA because the medical condition was not serious or continuing, the U.S. Court of Appeals for the Tenth Circuit ruled on November 2, 2005 (Jones v. Denver Public Schools,10th Cir., No. 04—1447, 11/2/05). The Tenth Circuit covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming plus those portions of the Yellowstone National Park extending into Montana and Idaho.

Facts: A telecommunications technician claimed he fell at home and aggravated a preexisting back injury. He phoned in sick and stayed home for two days. On the third day, his supervisor told him he needed to bring a note from a physician upon his return. On his fourth day off, he visited a doctor, who gave him a cortisone shot, and indicated in his note to the employer that he had pain requiring rest for five days "due to a wrenched back" and could return to work on day six. He then became ill with the flu, and phoned in sick for two additional days. When he returned to work, he was terminated by his supervisor due to his "inability to conform with the job requirements of a telecommunications technician" and his "unreliable attendance record, as evidenced from the last seven days' absence."

Two weeks later, while his appeal of the termination was being examined, the employee visited his physician for a second time, whose records included a passing reference to his back pain: "Reviewed back - improving."

A period of incapacity must be more than three consecutive calendar days and involve treatment two or more times by a health care provider, or a single treatment by a health care provider that results in a "regimen of continuing treatment." The court disregarded the second visit as actual treatment.