Does a family medical leave of absence under FMLA laws protect an employee’s leave for the flu? How about a serious cold? Leave of absence laws were established to protect employees with serious health conditions, but what measures up?

Generally, unless complications arise, the common cold, the flu, earaches, upset stomach, and headaches (other than migraines) are examples of conditions that usually do not meet the definition of a serious health condition and do not qualify for FMLA leave. However, any one of these conditions may rise to the level of a FMLA-covered serious health condition if all the other requirements of a “serious health condition” are met.

Define “Serious” Health Condition

The definition of a “serious health condition” under the FMLA includes:

1. 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
2. Continuing treatment by a healthcare provider.

Continuing Treatment

The 2009 final FMLA regulations changed the definition of what qualifies as “continuing treatment” by a healthcare provider. Under the regulations, to qualify as “continuing treatment,” the condition must involve:

• A period of incapacity of more than 3 consecutive, full calendar days, and any subsequent treatment or period of incapacity for the same condition that also involves either:
  1. Treatment by a healthcare provider two or more times within 30 days of the first day of incapacity,unless extenuating circumstances exist; or
  2. Treatment by a healthcare provider at least once that results in a regimen of continuing treatment under the supervision of the healthcare provider (The requirement for treatment by a healthcare provider means an in-person visit to that healthcare provider. The first (or only) in-person treatment visit must take place within 7 days of the first day of incapacity).
• Any period of incapacity because of pregnancy or prenatal care.
• Any period of incapacity because of a chronic, serious condition (i.e., one that requires periodic visits, at least twice a year, for treatment which continues over an extended period of time, and which may cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy).
• A period of incapacity that is permanent or long-term because of a condition for which treatment may not be effective (e.g., Alzheimer’s disease).
• Any period of absence to receive multiple treatments by a healthcare provider (e.g., for reconstructive surgery after an accident or injury) or for a condition that would likely result in a period of incapacity of more than 3 consecutive, full days if untreated, such as for cancer (chemotherapy) or kidney disease (dialysis).

For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack or because the employee’s healthcare provider has advised the employee to stay home when the pollen count exceeds a certain level. An employee who is pregnant may be unable to report to work because of severe morning sickness.

Incapacity. The term “incapacity” means inability to work, attend school, or perform other regular daily activities due to the serious health condition, treatment, or recovery.

Treatment. Covered “treatment” includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations.

A regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (e.g., oxygen). A regimen of continuing treatment that includes the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a healthcare provider, is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave.

What the Courts Say

At least two federal appeals courts have weighed in on this issue, both finding that the flu and other viral illnesses could be protected under FMLA. In the case of Miller v. AT&T Corp., the 4th Circuit (covering Maryland, North Carolina, South Carolina, Virginia, and West Virginia) held that as long as FMLA’s definition of a serious health condition is met, the flu could qualify for coverage (250 F.3d 820).

Similarly, in Rankin v. Seagate Tech., Inc., the 8th Circuit (covering North Dakota, South Dakota, Nebraska, Minnesota, Iowa, Missouri, and Arkansas) held that a viral infection that met the statutory requirements was an FMLA qualifying illness (246 F.3d 1145).

So, when addressing FMLA eligibility, employers are left to conduct a case-by-case analysis. In this analysis, the employer will need to investigate whether each sick employee requesting FMLA leave meets the eligibility criteria for a FMLA-covered :serious health condition.

BLR's Family and Medical Leave Act Compliance Guide always includes the latest regulation changes--everything you need to know NOW to stay compliant! This practical family and medical leave compliance handbook simplifies the frustrating and confusing complexities of the Family and Medical Leave Act (FMLA), so you know exactly how to comply in every situation.

Leave of Absence Resources

• Influenza Web Resources by State
• FMLA Abuse: What Is and What Isn’t
• BLR’s FMLA Resource Center
• FMLA Tracker: Fixed 12-Month Period
• FMLA Instructions for Supervisors

Susan Schoenfeld, J.D., is a Senior Legal Editor for BLR’s human resources and employment law publications. Ms. Schoenfeld has practiced in the area of employment litigation and counseling, covering topics such as disability discrimination, wrongful discharge, sexual harassment, and general employment discrimination. She has litigated numerous cases before the U.S. Court of Appeals, state court, and at the U.S. Department of Labor. In addition to litigating employment cases in state and federal court, she provided training and counseling to corporate clients regarding employment-related issues. Prior to entering private practice, Ms. Schoenfeld was an attorney with the Civil Rights Division at the U.S. Department of Labor in Washington, D.C., where she advised federal agencies, drafted regulations, conducted inspector training courses, and litigated cases for the Office of Federal Contract Compliance Programs, the Directorate of Civil Rights, and the Mine Safety and Health Administration. Ms. Schoenfeld received her undergraduate degree, cum laude, with honors, from Union College, and her law degree from the National Law Center at George Washington University.