FAQs on Employment Laws and the H1N1 Flu (Swine Flu)

By Allen Smith, J.D. Sep 1, 2009

Is the H1N1 flu a serious health condition under the Family and Medical Leave Act (FMLA)?

It could be. The FMLA rule states that “ordinarily, unless complications arise, the common cold, the flu … are examples of conditions that do not meet the definition of a serious health condition” (emphasis added). However, complications can arise with the H1N1 flu. And the FMLA regulations define “serious health condition” expansively, stating that: “For purposes of FMLA, ‘serious health condition’ entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care … or continuing treatment by a health care provider.” The FMLA rule includes within its definition of “continuing treatment” a period of incapacity of more than three consecutive calendar days and any subsequent treatment or period of incapacity relating to the same condition that also involves treatment two or more times within 30 days of the first day of incapacity, or treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment.

Is the H1N1 flu an Americans with Disabilities Act (ADA) disability?

Probably not, since it usually is short-term.

Does the FMLA permit involuntary leave?

Yes. However, the H1N1 flu isn't automatically covered by the FMLA, but instead must satisfy the law's definition to be a covered serious health condition.

Can an employer count time off for the H1N1 flu as FMLA leave even if an employee does not want time to count as FMLA?

Yes, as long as the condition is an FMLA serious health condition.

How might the Fair Labor Standards Act requirements apply to employees who are out because of the H1N1 flu?

For exempt employees, time away from work can be unpaid as long as it is in full-day increments if it is voluntary and initiated by exempt employees. For time off mandated by employers, the time away from work for exempt employees can be unpaid only in full-pay week increments. For nonexempt workers, time away can be unpaid, subject to paid leave policies. 

Might the National Labor Relations Act apply in a nonunionized worksite if employees voluntarily decide they are not going to come to work due to reasonable safety concerns about co-workers who may have the H1N1 flu?

Yes, as this likely would be considered protected, concerted activity. 

If employers provide employees with respirators, would Occupational Safety and Health Administration (OSHA) regulations apply?

Yes. OSHA’s respirator protection standard (29 C.F.R. §1910.134) requires an employer to determine that the respirator does not provide any additional hazard and to provide a copy of Appendix D to the standard to employees.


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