Family Leave: Absences Due To Colds And Flu May Be Covered; 3-Point Leave Compliance Checklist

When employees call in sick and say they’ll be out for a few days with a cold, you may not give it much thought. But you probably need to pay more attention-especially if absenteeism is a problem in your organization-because a recent U.S. Department of Labor opinion suggests that workers’ time off could qualify as family leave. We’ll look at how to handle these situations to avoid disputes with your employees over family leave.

Tracking Leave Important

Generally, if you have 50 or more workers, they could be eligible to take unpaid family leave for, among other things, their own serious health condition or to care for a child, parent or spouse with a serious health condition.

It’s important for you to know whether an absence should be considered family leave because it is illegal to discipline or terminate someone who takes time off that could be counted as family leave. And, you’ll need to know if the absence is covered by the law in order to keep track of how much of the annual 12 weeks of family leave the person has used.

Our HR Management & Compliance Report: How To Comply with California and Federal Leave Laws, covers everything you need to know to stay in compliance with both state and federal law in one of the trickiest areas of compliance for even the most experienced HR professional. Learn the rules for pregnancy and parental leaves, medical exams and certifications, intermittent leaves, required notices, and more.

Out With The Flu

Minor ailments, such as the common cold, flu, earaches, upset stomach, non-migraine headaches and routine dental problems, usually don’t qualify as serious health conditions under the law. But the Department of Labor has now taken the position that even these seemingly minor afflictions can be considered serious if the following three criteria for a “serious health condition” are met:

1. the problem lasts more than three calendar days
2. the employee is unable to work, attend school, or perform regular daily activities
3. the condition involves continuing treatment, which is either: a) treatment two or more times by a health care provider; or b) treatment given at least once by a health care provider which results in continuing treatment, such as a course of medication that is prescribed and not available over-the-counter.

This means, for example, that if an employee with a sinus infection can’t work for four days, has visited the doctor and is taking antibiotics, the absence would fall under the family leave laws. But if someone is off work for four days with a toothache and goes to the dentist just once (not twice) to have the tooth pulled, the employee isn’t getting “continuing treatment” and wouldn’t qualify for family leave.

What You Should Do

Because the Labor Department’s ruling expands family leave to illnesses many employers never thought were covered, it’s more important than ever to determine whether an employee’s time off qualifies as family leave. Here is a handy three-point checklist to help you navigate the tricky rules:

1. Look for red flags. As a general guide, whenever someone is off work for more than three days because of their own illness or a family member’s, you should be on the alert that family leave may be involved. If someone is off for two days and tells you they’ve seen a doctor and won’t be able to work for a few more days, that, too, is a red flag that the employee may qualify for family leave.

    

2. Use caution when asking questions. If an employee tells you they or a family member are sick, you can ask how long they’ll be out of work and whether a health care provider is treating the illness. You can also inquire further if the information you receive indicates that the time off is for a family leave purpose. But you can’t probe workers about why they want to use accrued paid time off, such as vacation, if they don’t volunteer their reasons.

   Also, in California, it’s illegal to ask specific questions about a person’s health condition even if you know that they’re taking time off because of an illness. Instead, if you need more information to determine whether the absence counts as family leave, have the worker complete a family leave medical certificate. (For a copy of this form, which is designed to comply with California’s privacy laws, see the CEA August 1995 Bulletin.)

    

3. Follow the two-day rule. You’re required to notify the employee that their absence will be counted against family leave within two business days of learning that it qualifies. But you have the right to retro- actively designate the time as family leave within two business days of the worker’s return if you didn’t know the reason for the leave while the employee was out.

   Finally, if you require the worker to submit a medical certificate confirming the ailment qualifies for family leave, you can wait until you have received the completed form to designate the time off as family leave.