Winter’s Here! Does FMLA Cover the Flu?

Leave Policy/Compliance
by Bob Brady


The flu can affect 10 to 20 percent of your workforce. But is it serious enough to warrant FLMA coverage? Here’s the government’s typically fuzzy answer.


December 21 marks the first day of winter. That means joyous holidays and great skiing, (snow or water, depending on where you are.) But it also means the return of the common flu.


According to the U.S. Centers for Disease Control and Prevention (CDC), flu season can last all the way to April By then, the CDC estimates that 10 percent to 20 percent of U.S. residents will have gotten the flu. What does that likely mean for you? Get ready for a lot of employee absences.


The Family and Medical Leave Act (FMLA) is intended to apply to situations where an employee has a serious health condition. The flu is certainly no fun to have, but does it justify an FMLA claim?


The Bureaucrat’s Answer, “No” … with a “Sometimes”


Initially, the U.S. Department of Labor (DOL) said “No” to flu victims receiving FMLA leave, stating in its regulations that the flu was one of the minor illnesses that ordinarily don’t meet the law’s definition of a “serious health condition.”


Later, however, DOL “clarified” its stance. In two opinion letters (DOL Opinion No. 86 and No. 87, both dated December 12, 1996), the agency stated that illnesses like the flu could be covered by the FMLA if they met the criteria for a serious health condition, on a case-by-case basis.


In DOL’s second opinion letter, besides repeating the same assertion, the rule makers added an example: “If an individual with the flu is incapacitated for more than 3 consecutive calendar days and receives continuing treatment, e.g., a visit to a healthcare provider followed by a regimen of care such as prescription drugs, the individual has a qualifying ‘serious health condition’ for purposes of FMLA.”


The Courts Agree: Flu can be covered by FMLA


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 where does that leave you, the employer? Likely with a case-by-case situation, in which you’ll need to investigate just how much each employee claiming FMLA leave has satisfied the requirements to get it. Was the worker (or his or her family member needing the worker’s care) down with the illness more than 3 days? Was there a visit to a healthcare provider? Was there a follow-up regimen?


Or take this alternative: Consider what could happen to your well workforce if an employee still harboring the bug returns to work prematurely—or tries to stay at work even if ill?


Because then you could be dealing the flu on a “cases-by-cases” basis.

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