Back when Congress was debating the initial passage of the, there was considerable discussion about what kinds of illnesses would entitle an employee to FMLA protection.
Colds and the flu were frequently mentioned as examples of illnesses not meant to be covered.bear this out, including this specific language:
“unless complications arise, the common cold, the flu, ear aches, 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.”
Based on this, many employers routinely deny FMLA leave for the flu and count such absences against theirpolicies.
That can be a mistake. What counts is whether a particular case of the flu meets other FMLA conditions. The key phrase: “unless complications arise.”
Someone so hard hit with the flu that she is hospitalized, for example, would be eligible for FMLA leave. The same would be true for someone who visits his medical provider and receives treatment or has to return a second time.
If in doubt, ask for a medical certification. Decide whether to approve or deny FMLA leave based on what the certification says.
Recent case: Jacqueline was fired from her job after missing too much work because of frequent illnesses and doctors’ appointments. She sued, alleging that one week-long absence was due to a case of the flu. She also alleged she got sick several months later and had to take a few more days off. Both absences, she said, should have been covered FMLA leave—and shouldn’t have counted against her.
Jacqueline’s former employer argued that the flu isn’t a condition that makes an employee eligible for FMLA leave.
The court generally disagreed, noting that the FMLA regulations provided for exceptions if a case of influenza is particularly serious and involves complications, or requires hospitalization or continued medical treatment.
However, in this case, Jacqueline didn’t offer any evidence that she went to her doctor for treatment, was hospitalized or otherwise underwent treatment for complications. Nor did she claim that the second illness was somehow related to her initial case of the flu. Therefore, she couldn’t show she had suffered from a serious health condition.
Since she wasn’t eligible for FMLA leave, the court said Jacqueline’s time off could count against her and the termination was valid. The court dismissed her lawsuit. (King v. The Permanente Medical Group, No. 2:13-01560, ED CA, 2013)
Final note: When in doubt, treat an illness as if it may be covered by the FMLA. Then ask for a medical certification. If you disagree with the employee’s medical provider, you have the right to request a second assessment from a different health care provider. If the two disagree, you can get a third, tiebreaking one. As the employer, you pay for the second and third assessment, but not the first.
Also, don’t forget that FMLA leave is now available for more than illness. Employees with family members in the military are also eligible for time off under certain circumstances. For more information, see the Department of Labor’s website on military service and FMLA leave.
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