HR Management & Compliance

Family And Medical Leave: Employer Dodges $118,000 Verdict In Dispute Over Time Off For The Flu; Tips For Handling Minor Illnesses

When the U.S. Department of Labor issued an opinion two years ago suggesting that absences due to the common cold or flu could sometimes qualify as family leave, it was greeted with consternation by many employers. Now, in a new decision, a California appellate court has overturned a $118,000 verdict in favor of a worker who argued that her employer should have known her week-long absence for the flu qualified as protected medical leave.

Virus Results In Missed Work

Kathleen Gibbs was an American Airlines service representative at the San Francisco International Airport. She called in sick for four days – two before and two after her regularly scheduled days off – complaining of a virus and chills. Gibbs told her supervisor she wasn’t feeling well and that her doctor had prescribed antibiotics and told her to stay home.When she returned to work, Gibbs met with her supervisor and another manager to discuss her performance and attendance. American was apparently suspicious that Gibbs was abusing sick leave, and informed her she would need to produce a doctor’s note for any additional illnesses in the next 90 days. Three days later, Gibbs quit.

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.

What’s A Serious Health Condition?

Gibbs sued American for violating the California and federal family and medical leave laws, which apply if you have 50 or more employees. She claimed her illness met the definition of a “serious health condition” and the airline discriminated against her by imposing discipline after she took time off. Gibbs argued that under federal regulations even seemingly minor ailments can fall within the definition of a serious health condition provided that: the problem lasts more than three calendar days; the employee can’t work; and the condition involves treatment two or more times by a health care provider or results in continuing treatment, such as a course of prescription medication.

Taking Medication Not Enough

But the appellate court rejected Gibbs’s reading of the regulations. It concluded that her description of her illness to her supervisor suggested only that she had a cold or flu, and wasn’t sufficient to put American on notice that the condition qualified for family leave. Also, the court ruled that the definition of a serious health condition includes an “incapacity to work” and that mere absence from work, along with taking antibiotics, is not sufficient. In fact, the federal rules cite the common cold and flu as examples of conditions that usually don’t meet the definition of a serious health condition.

Family Leave Strategies

Despite this ruling, you still need to be careful whenever an employee is ill for more than a few days. Another court could decide that time off for a flu or cold should be classified as family leave. Here are some tips for handling thesesituations:


  1. Look for red flags. Although employees must notify you either before or as soon as possible after taking family leave, the notice doesn’t have to be in writing and the burden remains on you to determine whether an absence qualifies as family leave. Whenever someone is off work 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.


  2. Ask questions. If you discover an employee is absent because they or a family member is sick, you can ask how long they’ll be out and whether a health care provider is treating the illness. But it’s illegal in California to ask specific questions about a person’s health condition even if you know they’re off because of an illness. The best approach is to ask a worker who has been out more than three days to complete a family leave medical certificate. 


  3. Follow the two-day rule. You must notify the employee that an absence will be counted against family leave within two business days of your learning that it qualifies. You can retroactively 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.