FMLA and the Flu

Can Employees Take FMLA Leave for the Flu?

Cold and flu season is here, and employees are missing work because of the flu. For this week’s HR Scenario, let’s take a look at a question from one of our small business clients:

Can an employee take FMLA leave for the flu?

While you might assume the flu is not covered by the Family and Medical Leave Act (FMLA), the correct answer is yes. But the circumstances matter, and an HR professional would say “it depends.”

But before you continue, if you’re just learning about the Family Medical Leave Act, whether or not it applies to your business, and if your employees are eligible to use FMLA leave, check out our in-depth “What Is the FMLA?” article to get up to speed.

The FMLA covers “serious health conditions.”

According to the FMLA, an eligible employee is covered if their illness qualifies as a “serious health condition.” A serious health condition exists when the employee is incapacitated for more than three full, consecutive days and receives continuing treatment by a healthcare provider. The FMLA defines serious health condition as:

“an illness, injury, impairment, or physical or mental condition that involves:

  1. Inpatient care in a hospital, hospice, or residential medical care facility; or
  2. Continuing treatment by a health care provider.”

When is an employee incapacitated?

As noted in its 1996 opinion, the Department of Labor defines a period of incapacity as the inability to work, attend school, or perform other regular daily activities due to a serious health condition, treatment for the health condition, or the recovery process. For the FMLA to apply, the period of incapacity must continue for three full, consecutive days.

See also: FMLA, ADA, PDA, and Additional Pregnancy Leave

What is continuing treatment?

The Department of Labor expanded on its definition of “continuing treatment” as follows:

  1. Treatment two or more times by a health care provider, by a nurse or physician’s assistant under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or
  2. Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment (i.e.; prescription medication) under the supervision of the health care provider.

Under these definitions, the FMLA could also apply to illnesses such as strep throat, an ear infection, or bronchitis – as long as they result in incapacity of more than three full, consecutive calendar days, and involve continuing treatment by a health care provider.

When is sick leave NOT covered by the FMLA?

Helpfully, the regulations clarify that the taking of over-the-counter medications such as aspirin or antihistamines, bed-rest, drinking fluids, exercise, and similar activities – those that can be initiated without a visit to a health care provider – by themselves are not considered a regimen of continuing treatment for purposes of FMLA leave.

Related article: The Hidden Cost of Your Sick Leave Policy

Bottom line: know your employees’ FMLA rights.

Although FMLA leave is not often used for the flu, managers and HR staff should know when an employee may be entitled to FMLA rights. If the employee’s flu-related illness meets the definition of a “serious health condition,” then the FMLA applies. For even more detailed questions about the flu and the FMLA, the Department of Labor has published a Q&A Sheet.

Remember, the Family and Medical Leave Act applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees.

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