We have a worker with a cold or flu they just can’t shake. Would FMLA ever come into play?
Quick Answer
If the cold or flu meets the FMLA’s definition of “serious health condition” and the employee meets all other applicable eligibility requirements for coverage, they are entitled to the protections that the statute provides.
Legal Perspective
Kollman & Saucier
Timonium, Maryland
While minor sicknesses like a cold or the flu aren’t typically covered by the FMLA, there are some exceptions, says employment law attorney Darrell VanDeusen of the firm Kollman & Saucier.
If an employee’s cold or flu incapacitates them for more than three days, and they’re receiving treatment for it, it could qualify as a serious health condition under the FMLA. The safest course of action would be to give the employee FMLA paperwork, just in case.
Relevant Case Law
Miller v. AT&T Corp.
Brannon v. OshKosh B’Gosh, Inc.
King v. Permanente Medical Group, Inc.
HR Insight
On Track Resources LLC
Sellersville, Pennsylvania
Well, it could, says Marta Griffith. First, look at the federal FMLA. Is the person eligible, meaning they meet the 12 months of employment and 1250 hours of work requirements?
If so, refer to the requirements of a “serious health condition”: overnight hospital stay or overnight stay and following treatments, incapacity of more than 3 consecutive stays and two or more visits to a medical provider within 30 days, or a visit to a medical provider with followup “treatment”, including prescription(s). This is a simplified definition. Remember that leave does not need to be consecutive days. It could also be intermittent.
After considering the federal FMLA, look to the state leave laws. Sometimes their eligibility rules are different than those of the federal FMLA.
Creative Testing Solutions
Flagstaff, Arizona
If the worker is FMLA eligible and has a qualifying condition, the individual could potentially qualify for intermittent, reduced schedule, or continuous leave if the time away is necessary for them to heal, says Meredith Burr.
The employee would need to follow the established protocol for applying for leave under the FMLA.
Key Takeaways
- Do not assume that the flu or a severe cold can never be a serious health condition under the FMLA.
- Although the flu ordinarily is not a serious health condition under the FMLA, it can be if the definition of the term is met.
- Under the FMLA, a serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.
- Under FMLA regulations, a serious health condition involving continuing treatment by a health care provider includes a period of incapacity of more than three straight calendar days, as well as any subsequent treatment or period of incapacity relating to the same condition that also involves either treatment at least two more times or at least one more treatment that results in a regimen of continuing treatment.
- Examples of a regimen of continuing treatment include a course of prescription medication and therapy requiring special equipment.
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