With flu season at its peak and certain strains of the flu requiring longer recovery periods, workplaces are experiencing a spike in the frequency and duration of flu-related absences. The Centers for Disease Control and Prevention (CDC) report that it may take anywhere from a few days to two weeks to recover from the flu this season.
So, when an employee calls out sick with the flu, is the employee entitled to leave under the Family Medical Leave Act (FMLA)?
Yes, if the FMLA-eligible employee is incapacitated for more than three full consecutive days and either: (1) consults with a doctor two or more times within 30 days, or (2) consults with a doctor once and receives a regimen of continuing treatment (i.e., prescription medication). However, if the flu only lasts a few days and does not require medical treatment, it will not trigger protections under the FMLA.
Although the FMLA itself does not define qualifying illnesses, the FMLA regulations state:
[o]rdinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal diseases, etc. are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave. 29 C.F.R. § 825.113(d).
That said, if the employee’s flu-related illness meets the definition of a “serious health condition,” the FMLA applies.
How does the FMLA define “serious health condition”?
An illness, injury, impairment, or physical or mental condition that involves either inpatient care (i.e., an overnight stay in a hospital, hospice, or residential care facility); or “continuing treatment” by a health care provider.
What constitutes “continuing treatment”?
A period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also involves either: (a) treatment by a health care provider two or more times within 30 days of the first day of incapacity, unless extenuating circumstances exist (i.e., the health care provider does not have any available appointments during that timeframe); or (b) treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment under the supervision of the healthcare provider. 29 C.F.R. § 825.115. Further, the first (or only) in-person treatment visit must take place within seven days of the first day of incapacity. Covered “treatment” includes examinations to determine if a serious health condition exists and evaluations of the condition, but does not include routine physical examinations.
If an employee telephones the doctor, but does not actually see the doctor for an examination, does that qualify as treatment for FMLA purposes?
No; the Department of Labor has taken the position that a telephone conversation is not an examination. 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 FMLA regulations.
Do over-the-counter medications qualify as a regimen of continuing treatment?
No; for FMLA purposes, a regimen of continuing treatment includes, for example, a course of prescription medication (i.e., an antibiotic). The FMLA regulations clarify that a regimen of continuing treatment that includes the taking of over-the-counter medications such as aspirin or antihistamines, or bed rest, drinking fluids and other similar activities that can be initiated without a visit to a health care provider, is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave.
Have any courts weighed-in on the issue?
Yes; several courts have held that the flu may qualify for FMLA protection when the illness meets the definition of a serious health condition. For example, in Miller v. AT&T Corp., 250 F.3d 820 (4th Cir. 2001), the court held that the employee’s flu met the FMLA’s definition of serious health condition where the employee suffered a period of incapacity of at least three consecutive calendar days and visited her doctors several times for blood tests. In Wheeler v. Pioneer Developmental Servs., 349 F. Supp. 2d 158 (D. Mass. 2004), the court held that the employee’s virus constituted a serious health condition under the FMLA where she was unable to work for five days, visited the doctor twice within 30 days of her initial incapacity, and received a course of prescription medication.
To the contrary, in King v. The Permanente Medical Group, Inc., No. 2:13-01560, 2013 U.S. Dist. LEXIS 134388 (E.D. Cal. Sept. 19, 2013), the court held that an employee could not maintain an FMLA claim against her former employer after she was allegedly terminated for taking sick leave to recuperate from the flu and severe dehydration, because she did not allege that she was under inpatient care or that she received continuing treatment.
When an employee calls out sick with the flu for more than three consecutive days, initially treat the illness as an FMLA-qualifying illness and request a medical certification. Review the employee’s medical certification to determine if the condition qualifies as a serious health condition as defined by the FMLA regulations. It is important to note that although an employee may not qualify for FMLA leave, the employee may qualify for leave under a state or local sick leave law.
Tiffani L. McDonough is an attorney in the Labor Relations & Employment Law Department of Obermayer Rebmann Maxwell & Hippel LLP, where she represents employers on a national basis in all aspects of labor and employment law. © 2014, Obermayer Rebmann Maxwell & Hippel LLP. All rights reserved. Republished with permission. This article originally appeared in the firm's online publication HR Legalist.
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