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On eve of flu season, know what FMLA covers

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in FMLA Guidelines,Human Resources

After last year’s swine flu scare, there’s good reason to worry about the upcoming flu season. A serious outbreak could incapacitate employers operating with lean staffing.

Of course, employers don’t want sick workers infecting everyone else. Still, they want their employees to come to work if they’re able.

Nonetheless, some employees, fearing they’ll sicken co-workers, may want to take time off if they suspect they’re coming down with the flu. And at least some of those workers may assume that sick time off will be covered by the FMLA.

That’s where things get tricky. Usually, the flu or bad colds aren’t considered serious health conditions under the terms of the FMLA. That means employees could be subject to termination if they don’t have sick leave to cover their absences.

In this situation, the best approach is education. Tell employees that an uncomplicated cold or flu usually isn’t an FMLA-qualifying problem. Then encourage employees to save up enough sick or other leave to cover such illnesses, while emphasizing that those without remaining leave may lose their jobs if they don’t show up.

Recent case: Patricia Singletary had an absenteeism problem and was frequently written up. In fact, she was warned that another absence would mean termination.

She then told her supervisor she might be “contagious” with a viral illness. She was sent home. It turned out she had a run-of-the-mill illness, not anything serious. Her employer fired her.

Singletary sued, alleging her illness was a serious health condition.

The court disagreed since there was no proof she actually couldn’t work. Whether she was contagious was not 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)

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