Does a serious cold qualify as a serious health condition under the Family and Medical Leave Act (FMLA)? How about the flu? Leave of absence laws were established to protect employees with serious health conditions; do colds and the flu measure 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, says attorney Susan E. Schoenfeld, a BLR Senior Legal Editor.
However, she adds, 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.
Defining “Serious” Health Condition
The definition of a “serious health condition” under the FMLA includes:
- 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
- Continuing treatment by a healthcare provider.
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Defining ‘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:
- Treatment by a healthcare provider two or more times within 30 days of the first day of incapacity, unless extenuating circumstances exist; or
- 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.
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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.
Regimen. 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.
In tomorrow’s Advisor, what the courts say about colds, flu, and the FMLA, plus an introduction to the simple solution—a wellness program.
This information is reassuring, and I’ll be curious to see what the courts say in the next piece. Sometimes it seems like when in doubt, you should assume something is a serious health condition.