3d Cir. Model Jury Instr. (Civil) 10.2.1

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Last updated March 2026

id. at 210 (not deciding what would count as a “substantial period” but suggesting that “a minimum 62

of eight hours would seem to be an appropriate period of time ”). 29 C.F.R. § 825.113(b) states: 63

“The term incapacity means inability to work, attend school or perform other regular daily 64

activities due to the serious health condition, treatment therefore, or recovery therefrom.” 65

Incapacity plus treatment 66

29 C.F.R. § 825.115 provides in part: 67

A serious health condition involving continuing treatment by a health care provider 68

includes any one or more of the following: 69

(a) Incapacity and treatment. A period of incapacity of more than three 70

consecutive, full calendar days, and any subsequent treatment or period of 71

incapacity relating to the same condition, that also involves: 72

(1) Treatment two or more times, within 30 days of the first day of 73

incapacity, unless extenuating circumstances exist, by a health care 74

provider, by a nurse under direct supervision of a health care provider, or 75

by a provider of health care services (e.g., physical therapist) under orders 76

of, or on referral by, a health care provider; or 77

(2) Treatment by a health care provider on at least one occasion, 78

which results in a regimen of continuing treatment under the supervision of 79

the health care provider. 80

(3) The requirement in paragraphs (a)(1) and (2) of this section for 81

treatment by a health care provider means an in-person visit to a health care 82

provider. The first (or only) in-person treatment visit must take place within 83

seven days of the first day of incapacity. 84

(4) Whether additional treatment visits or a regimen of continuing 85

treatment is necessary within the 30-day period shall be determined by the 86

health care provider. 87

(5) The term extenuating circumstances in paragraph (a)(1) of this 88

section means circumstances beyond the employee ’s control that prevent 89

the follow-up visit from occurring as planned by the health care provider. 90

Whether a given set of circumstances are extenuating depends on the facts. 91

For example, extenuating circumstances exist if a health care provider 92

determines that a second in-person visit is needed within the 30-day period, 93

but the health care provider does not have any available appointments 94

during that time period. 95