Flu Season: Coordinate Compliance with FMLA, ADA, Paid-Leave Laws

The 2024-2025 flu season has been among the worst in recent years, according to the Centers for Disease Control and Prevention. Since Oct. 1, there have been at least 44 million recorded flu illnesses in the U.S. 

The flu is potent, with patients taking four days or more to recover. That may mean they qualify for Family and Medical Leave Act (FMLA) leave. Different provisions of state and local paid-sick-leave laws and the Americans with Disabilities Act (ADA) might also apply to employees who come down with the flu.

Who Qualifies for Paid Sick Leave?

Most paid-sick-leave laws allow workers to use paid leave to recover from the flu.

Federal contractors should know that Executive Order 13706 provides paid sick leave for their employees.In addition, 18 states — Alaska, Arizona, California, Colorado, Connecticut, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington — plus Washington, D.C., have paid-sick-leave laws.

At least 33 U.S. municipalities also have paid-sick-leave laws: Berkeley, Calif.; Bloomfield, N.J.; Chicago; Cook County, Ill.; East Orange, N.J.; Elizabeth, N.J.; Emeryville, Calif.; Irvington, N.J.; Jersey City, N.J.; Long Beach, Calif.; Los Angeles; Minneapolis; Montclair, N.J.; Montgomery County, Md.; Morristown, N.J.; New Brunswick, N.J.; New York City; Newark, N.J.; Oakland, Calif.; Passaic, N.J.; Paterson, N.J.; Philadelphia; Pittsburgh; Plainfield, N.J.; Prince George’s County, Md.; St. Paul, Minn.; San Diego; San Francisco; Santa Monica, Calif.; SeaTac, Wash.; Seattle; Tacoma, Wash.; and Trenton, N.J. Employers with paid-time-off (PTO) policies usually provide enough paid sick leave to fulfill regulatory requirements. However, paid-sick-leave laws may cover people who are not eligible for benefits under an employer’s policy. In these cases, employers may have to revise their policies to permit the use of paid sick leave for all reasons allowed under the particular ordinances. 

Various paid-sick-leave laws permit time off not only for employees’ own illnesses but also to care for family members who are ill, said Marjory Robertson, assistant vice president and senior counsel for disability insurance company Sun Life in Wellesley Hills, Mass. All laws include spouses and children. Many laws also include foster children; stepchildren; legal wards or children to whom the employee stands in the place of a parent; stepparents; a person who stood in the place of a parent when the employee was a minor; domestic partners; grandchildren; grandparents; siblings; and spouses of grandparents and siblings.

The amount of paid sick leave required varies from three days to nine days (with Emeryville, Calif.; Oakland; San Francisco; and Seattle allowing the most). In addition, employers in Seattle that have 250 or more full-time workers and have a combined PTO policy that includes sick days must provide each employee 13.5 days of paid sick leave, Robertson said.

Many paid-sick-leave laws also apply to routine medical appointments that employers may not otherwise cover.

FMLA

The flu ordinarily isn’t covered by the FMLA, which provides 12 weeks of unpaid leave to individuals with serious health conditions or who are caring for a child, spouse, or parent with such conditions. However, flu may become a protected serious health condition if an employee is incapacitated for more than three full consecutive days and either:

• Consults with a doctor two or more times within 30 days, or
• Consults with a doctor once and receives a regimen of continuing treatment (that is, prescription medication).

For example, “if I have the flu and I’m incapacitated for more than three days — that includes weekends or other nonworking days  — and I see my doctor who prescribes Tamiflu or an antibiotic, then I have a serious health condition” under the FMLA, said Matt Morris, vice president of FMLASource at ComPsych in Chicago.

If the time off could become FMLA leave, employers should be cautious about asking employees to telecommute while out of the office, he said.

ADA

The flu typically is not a covered, actual disability under the ADA because it usually does not last long enough to substantially limit a major life activity, said David Fram, director of ADA and equal employment opportunity training in Golden, Colo.

But someone with the flu might claim an employer regarded them as having a disability, Fram added. This would invoke the ADA’s prohibition on discrimination against those with actual or “regarded as” disabilities. However, only those with actual disabilities are entitled to reasonable accommodation.

“It is possible that a serious case of the flu could be covered in certain states where state law doesn’t require substantial limitation, such as New York or California,” he said.

However, Robertson said that when the flu is severe and resulting in many hospitalizations, the ADA could be interpreted to cover influenza as an actual disability requiring reasonable accommodation, such as ADA leave.

This leave might be needed not only for those who exhaust their FMLA time off, but for new employees who don’t qualify for FMLA or employees who haven’t worked enough hours in 12 months to be protected by the FMLA.

Rachel Zheliabovskii is a specialist, B2C content, at SHRM.