A serious flu outbreak could incapacitate employers. Plus, the season will lead to more confusion and questions over whether a flu or common cold can rise to the level of “serious health condition” that qualifies for job-protected FMLA leave.
FMLA regulations state that, “Unless complications arise, the common cold (and) flu … do not meet the definition of a serious health condition and do not qualify for FMLA leave.”
But pay attention to those first three words… “unless complications arise.” If the employee’s bad flu bug forces him to be incapacitated for more than three days, and he sees a doctor and receives an antibiotic, that employee could meet the qualifications to be eligible for FMLA leave (see full explanation below).
Bottom line: When an employee’s cold or flu goes beyond “normal,” you’ll need to evaluate the condition individually to determine whether it’s a “serious” FMLA-qualifying condition.
In such cases, the FMLA certification form is your best friend, as is your ability to request a second opinion if an employee delivers an FMLA certification that you question.
Recent case: Patricia Singletary was frequently written up for absenteeism problems at work. Finally, the company warned her that one more absence would mean termination.
Soon after, Singletary was at work when she told her supervisor that she “might be contagious” with a viral illness. The boss sent her home. It turned out Singletary had a run-of-the-mill illness, not anything serious. The company fired her.
Singletary sued, alleging her illness was an FMLA-qualifying serious condition.
The court disagreed because there was no proof she couldn’t work. Whether she was contagious or not wasn’t relevant. If that were the measure, everyone with a cold would be eligible for FMLA leave. (Singletary v. Stops, No. 6:09-CV-1763, MD FL, 2010)
Does a cold or flu qualify for FMLA leave?
by Nancy Delogu, Esq.
ANSWER: Probably not. The regulations implementing the FMLA specifically state, “Ordinarily, unless complications arise, the common cold, the flu, earaches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave.” (29 C.F.R. § 825.113(d))
However, there are times when a cold evolves into something more serious, like an upper respiratory infection, or where the flu is more aggressive than the ordinary fever and stomach bug. In those cases, the employee (or covered family member) may be suffering from a “serious health condition” significant enough to trigger FMLA coverage for eligible workers.
The regulations say any illness that results in a period of incapacity of more than three consecutive, full calendar days and any subsequent treatment or period of incapacity relating to the same condition, may rise to the level of a serious health condition if the person receives treatment from a health care provider two or more times within 30 days of the first day of incapacity (longer, if there are extenuating circumstances). The regulations say a “health care provider” may include a nurse working under the direction of a health care provider.
The health care must be provided in person and the first treatment visit must take place within seven days of the first day the employee was unable to work. A second visit would not be necessary if the ill person were to be prescribed a regimen of continuing treatment.
Advice: As cold and flu season approaches, employers should revisit their sick leave policies and consider whether they are in need of adjusting. Following the H1N1 flu pandemic of last year, consider whether your policies struck a workplace-appropriate balance between encouraging workers to come to work if they are able and striving to keep those who have fallen ill away from the workplace when they are likely to infect co-workers. Once that is done, recommunicate the policy to employees.
