Flu season is right around the corner. And if you recall, during last year’s swine flu pandemic, lots of employers came up with contingency plans in case employees got sick.
Most of those plans allowed employees generous leave in case they or loved ones became ill. The idea was to stop the pandemic from getting worse by discouraging those with the flu from coming in to work and infecting others.
Most swine flu cases, thankfully, ended up being quite mild—milder, in fact, than the regular flu. And as a practical matter, that probably meant that most employees who had swine flu would not have been eligible forbecause they weren’t incapacitated or unable to perform the essential functions of their jobs for three days. That’s what’s ordinarily required for coverage.
So employers may not have had to approve such leave.
Recent case: Dr. Natalie McCammon-Chase, who worked as a family physician, claimed she had been terminated after she refused to come to work after coming down with what she thought were the beginning symptoms of swine flu. She suspected she was catching swine flu because she had recently treated a patient with a confirmed case of the illness.
McCammon-Chase sued, alleging she was denied FMLA leave.
But the court disagreed. First of all, she never confirmed she had swine flu; she only suspected she did. Second, even if she did have the illness, she couldn’t show that it required treatment or hospitalization or incapacitated her for three days or more. (McCammon-Chase v. Circle Family Care, No. 09-C-7450, ND IL, 2010)
Final note: This case illustrates that—like the ADA assessment of disability—the FMLA is an individualized law. It only covers workers with illnesses that reach the level of a serious health condition—not run-of-the-mill ailments.
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