According to the U.S. Centers for Disease Control and Prevention, the 2012-2013 influenza season started early and activity remains high in the United States. The CDC warns that this may continue for some time. If the flu is causing your employees to take time off, either because they themselves are ill or because a family member has come down with the flu, you may be wondering if these employees are entitled to leave under the federal Family and Medical Leave Act (FMLA).
The Family and Medical Leave Act
Under the FMLA, employers with 50 or more employees are generally required to provide an eligible employee with up to 12 weeks of unpaid leave each year for certain reasons, including to care for an immediate family member (spouse, child, or parent) with a serious health condition or to take medical leave when the employee is unable to work because of his or her own serious health condition.
So is the flu a "serious health condition" entitling an employee to FMLA leave? The answer is a definite "maybe." Ordinarily, according to the federal FMLA regulations, the flu, the common cold, ear aches, upset stomach, minor ulcers, headaches other than migraine and routine dental or orthodontia problems are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave. However, if complications arise, these conditions may become serious health conditions.
When is the Flu a "Serious Health Condition?"
For purposes of FMLA, a "serious health condition" means an illness, injury, impairment or physical or mental condition that involves inpatient care, generally, an overnight stay in a hospital, hospice, or residential medical care facility, which includes a period of incapacity or any subsequent treatment in connection with the inpatient care.
A serious health condition can also include continuing treatment by a health care provider. Continuing treatment is a period of incapacity of more than three consecutive, full calendar days that also generally involves either:
- In-person treatment by a health care provider two or more times within 30 days of the first day of incapacity (the first in-person treatment must take place within seven days of the first day of incapacity); or
- In-person treatment by a health care provider on at least one occasion (which must take place within seven days of the first day of incapacity), which results in a regimen of continuing treatment under the supervision of the health care provider. A "regimen of continuing treatment" includes a course of prescription medications, but ordinarily would not include over-the-counter medications, bed-rest or similar activities which can be initiated without a visit to a health care provider.
This means that, for example, if an individual with the flu is incapacitated for more than three consecutive calendar days and receives continuing treatment, such as a visit to a health care provider followed by a regimen of care of antibiotics, the individual has a qualifying serious health condition for purposes of the FMLA.
Guidance from the U.S. Department of Labor
The following questions and answers from this FMLA Opinion Letter of the U.S. Department of Labor (DOL) may be helpful in determining whether an employee suffering from the flu is entitled to leave under the FMLA:
Q: What if the employee telephones the doctor but does not actually see the doctor for an examination?
A: If an employee who has the flu only telephones the doctor but is not seen or examined by the doctor, those circumstances would not qualify as “treatment” under the regulations. Treatment means an examination to determine if a serious health condition exists, evaluations of the condition, and actual treatment by the health care provider to resolve or alleviate the condition. A telephone conversation is not an examination. An examination or treatment requires a visit to the health care provider to qualify under FMLA.
Q: What if the doctor only prescribes medication "in case your cold turns into something more serious"? What if the employee does not have the prescription filled or does not follow the doctor's orders?
A: A prescription that is given "in case your cold develops into something serious" raises the question of whether the existing condition is a serious health condition for purposes of FMLA. In all likelihood, the employee has not yet suffered the "complications" that would qualify the illness as a serious health condition for FMLA leave purposes. An employee who does not follow the doctor's instructions is probably not under a "regimen of continuing treatment by or under the supervision of the health care provider" within the meaning of the FMLA regulations.
Q: What if the doctor advises the employee to stay at home, drink plenty of fluids, and stay in bed for a few days?
A: Staying at home, drinking fluids, and staying in bed are activities which can be initiated without a visit to a health care provider and do not constitute “continuing treatment” under the FMLA regulations.
For More Information
Read the DOL's FMLA Opinion Letter in its entirety for a more in-depth discussion of how the FMLA may protect employees with the flu. And don't forget state law--check your state labor office or our State Laws section for information about family and medical leave laws that may be in effect in your state. You can read more about the flu and the FMLA in our sections on Flu and Your Workplace and the Family and Medical Leave Act.
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